Kumarayya, J.:-

(1) These two appeals, s. A. No. 554 of 1962 preferred by the plaintiff and c. M. A. No. 20 of 1962 preferred by defendants 3 and 9 are from the judgment and decree dated 18th november, 1961 passed by the additional district judge, anantapur in appeal no. 214 of 1960 whereby he upheld the order of dismissal of the suit to the extent of the plaint schedule property, but set aside the order of the subordinate judge, anantapur in relation to b schedule property and remanded the suit in respect thereof for further trial and fresh disposal. The suit a and b schedule properties originally belonged to karnam appaurao. It is not known whether they were his self - acquisitions or had come into his possession from his forefathers. It is, however, clear that if these properties were ancestral, apparao was in possession thereof as the sole surviving coparcener till his death which took place on 30th march, 1951. The' case, as found by the trial court, which was not seriously contested in appeal, is that appaurao demised the said suit properties under a will dated the 28th march, 1951, which was his last testament, in favour of his minor wife, the 1st defendant, authorising her at the same time to take a boy in adoption for him to continue the family line and succeed to the office of karnamship of jagarajapalli; that she accordingly on 12th august, 1954 took the plaintiff in adoption with due formalities and executed a deed in his favour on 24th august, 1953 stating therein at the same time that the adopted boy became entitled to all the rights in the property which appaurao died possessed. By the time this adoption took place, the guardian of the 1st defendant, who happens to be her father, had alienated the a schedule properties to defendants 2 to 8 and has later obtained from the 1st defendant a relinquishment deed in respect of the b schedule property on 14th august, 1953 in favour of defendant 9 for a sum of rs. 2,500.

(2) The 9th defendant, on the same day, sold items 1 and 2 of the b schedule property to defendants 3 and 8 and paid the sale preceeds thereof in a sum of rs. 2,500 to the 1st defendant which formed the consideration for the relinquishment deed. He retained the other items nos. 3 to 10 in his possession. The plaintiff therefore brought the present action for recovery of possession of the said a and b schedule properties questioning the alienation of a schedule property as being invalid having been made without legal necessity and claiming that the relinquishment deed in relation to the b schedule property was void as the ist defendant was at the time but a minor.

(3) Defendants 1 and 2 remained ex parte. Defendants 3 to 9 resisted the claim of the plaintiff. It was averred that the sale of a schedule property was for legal necessity and for binding purposes, that the 1st defendant was a major at the time she executed the relinquishment deed, and received a sum of rs. 2,500. The defendantsdenied the truth and validity of the adoption of the plaintiff. The trial court found that both the will and the adoption were true and valid, but it dismissed the suit on the ground that what the widow got under the will was absolute right in the devised properties, which could not be affected by the adoption of the plaintiff and that by the time of adoption, a schedule properties were alienated by the natural guardian with the result that the alienees got title thereto and that the plaintiffs cannot impugn those alienations, nor even the relinquishment deed during her life time. He may, if so advised, file a suit for recovery of the property alienated to 9th defendant after the life - time of ist defendant. In the result, the suit of the plaintiff was dismissed without costs. The appellate court noticed that the defendants and a did not choose to contest the suit and remained ex parte in the trial court and that certain alienations were indeed made by the father of the 1st defendant in his individual capacity and not expressly as guardian of the minor ; but it did not go into the question of legality of such alienations as it was of the opinion that such transactions being voidable could be challenged only by the minor, that this right of the minor is incapable of being transferred and, that the plaintiff who got under the adoption deed a mere right to sue cannot in law challenge the alienations of a schedule property. It, therefore, upheld the order of dismissal passed by the trial court to that extent. As regards the relinquishment deed the learned additional district judge was of the view that inasmuch as the widow conveyed her interest in her husband's estate to her adopted son under the adoption deed executed by her, the plaintiff got rights in the devised property to the extent the widow still had at the time of adoption. If, therefore, the relinquishment deed was void being executed by the minor, it was open to the adopted son to claim the property covered by that deed. In this view of the matter the learned judge proceeded to consider whether the 1st defendant was a minor at the time. He came to the conclusion that the trial court did not give due weight to the evidence in that behalf which consisted of horoscope, entry in the birth register and the oral testimony of some of the witnesses on the simple ground that the plaintiff had failed in the trial court to produce the school record showing the age of the 1st defendant which, in the opinion of the trial court, warranted an adverse inference against the plaintiff. As the entry in the school register was produced in the appellate court, the appellate court thought that this piece of evidence should be brought on record in the interests of justice and that further evidence in relation thereto must be permitted to be adduced. On that ground, the learned judge set aside the finding of the learned subordinate judge and directed that the trial court shall receive further evidence on the question of the age of the 1st defendant with reference to the document produced in appeal and dispose of the matter according to law. Against this order of remand the defendants 3 to 9 have come up in appeal. The plaintiff has preferred a second appeal in relation to the finding about his right to a schedule propfties.

(4) We take up the civil miscellaneous appeal first. The only ground raised is that when the appellate court required the document to be produced in the interests of justice and was inclined to permit additional evidence in that behalf under order 41, rule 27, civil procedure code, the proper course thereafter for the court to follow was that prescribed under rules 28 and 29 and not rule 23 of order 41, civil procedure code. The order of remand, therefore, is liable to be set aside. This contention is not without force. Evidently the appellate court thought it necessary to permit the additional evidence sought to be adduced. The case therefore fell squarely within rule 27. The court ought to have then resorted to the provisions of rules 28 and 29 of order 41, civil procedure code. If it did not think it convenient to record evidence itself it should have directed the trial court to take evidence and send the same. There was no occasion to set aside the decree of the trial court and remand the case by resorting to rule 23 when the procedure to be followed was obviously that laid down in rules 28 and 29. We therefore, set aside the order of remand and direct the appellate court to proceed in accordance with and some judgments of courts. If that description is adopted (and i consider it to be the correct description of a person generally managing the estate of a minor without having any legal title to do so) the powers of a natural guardian are not brought into consideration in defining the position of such a manager". 'de facto guardian' thus is other 'than a natural guardian. Unl'ke the natural guard:an he is not clothed with any authority. Nevertheless, if having regard to the position that he assumes in relation to a minor, he has done anything for the benefit of his estate, out of necessity of the situation and in the minor's interest, the judge - made law has attached legality to such acts. The earnest decision in this behalf seems to be of the privy council in hunomanpershad pandcy v. Mussumat babooee munraj koonweree (1854 - 1857) 6 m. I. A. 393. There at page 423 it was observed thus :

"the power of the manager for an infant heir to charge an estate not his own, is under the hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bonafide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded"

(5) Then again at page 412 their lordships observed :

". Under the hindu law, the fight of a band fide incumbfancer who has taken from a de facto manager a charge on lands created honestly; for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jur manager) affected by the want of union of the de facto with the dejure title."

The expression used in this decision is 'de facto manager' and not' de facto guardian'. It is however clear from this decision that unless the alienation is bonafide and for legal necessity or for the benefit of the estate, the alienation would not be binding on the minor.

(6) Thus it can be assumed that under hindu law an alienation by a de facto guardian if for necessity is bind'. Ng on the minor. But it does not follow that an alienation by a de facto guardian not supported by necessity is voidable in the sense that it is binding on the minor until it is set aside. It may be said to be voidable in as much as it is open to the minor to ratify it on attaining majority even though it may not be for legal necessity or denefit of the estate. It does not follow that he should necessarily seek to set aside through the court if he does not want to ratify it. The position of a de facto guardian is not the same as a de jure guardian in that the latter is clothed with legal authority whereas the former has nothing of the kind.

(7) Of course the courts out of necessity have recognised the acts of a de facto guardian done for the benefit of the estate or legal necessity. Acts tempered with the said characteristics alone have binding effect on the minor. That being the case it is for the alleging party to establish that the transaction is of that kind. Herein, indeed, lies the difference between the powers of the two classes of guardians. The acts of the de facto guardian which are not supported by legal necessity or benefit to the estate may be ignord as wholly unauthorised. It is also open to the minor to ratify such transactions though not b'nding on him. It is only in that sense that the alienation can be said to be voidable. That such is the position in law, is settled by judicial precedents. It was ruled in balappa dundappa todkal v. Chanbasappa shivlingappa patil (1915) 17 bom. L. R. 1134. , the onus of proving the authority arising out of necessity is upon the person who tries to assert the validity of transfer by a de facto guard:an against the minor. It follows that unless it is so established the transfer will not be valid.

(8) A de facto guardian is other than the ' ad hoc guardian'. Some relationship or connection by way of continuous course of dealing with minor's affairs is indeed essential to be brought under that description as held in harilal ranchoddnd another v. Gordhan keshav and another (1927) ilr 51 bom 1040. In thayamrnal v. Kuppanna koundan ilr (1915) 38 mad 1125: (1914) 27 mlj 285, a bench of the madras high court held that a paternal aunt was not the natural guardian of the minor and her unauthorised alienations, which are not for legal necessity, made as defacto guardian need not be set aside. No doubt a slightly different note was struck in vemlappalli seetharamanna and others v. Magant appaiah and another ilr (1926) 49 mad 768 : (1926) 50 mlj 689. But even there it is only the alienations for legal necessity that have been held to be biding on the minor. The validity of the acts, which are not for benefit to the estate would of necessity depend upon the option of the minor. In ramaswami pillai and others v. Kasinatha iyer and others, air. 1928 mad. 276 (2) it was no doubt observed that a de facto guardian is in the same positiion as a de jure guardian under hindu law but that is only so far as acts done by him for the benefit of the minors are concerned, and to those acts the same test would be applied as is applicable to alienations by legal guardian. It was also held that in the case of a de jacto, guardian's alienation, strict proof is required not only with regard to the necessity but also to adequacy of consideration and the onus to prove the same lies on the other party. Kumaraswami sastri, j. Who delivered the opinion of the court in that case referred to the decision of hanooman prasad's case (1854 - 1857) 6 m. I. A. 893, and also to mohamud mondal v. Nqfur mondul (1899) 26 cal. 820, where the question was in relation to a sale and not mortgage which was the subject - matter of dispute in hanooman prasad's case (1854 - 1857) 6 m. I. A. 893. It was held there that if there was legal necessity such a sale was banding. The learned judge during the course of judgment referred to the decision of sadasiva aiyar, j. , in thayammal v. Kuppanna koundan ilr (1915) 38 mad 1125: (1914) 27mlj 285 and after reviewing the various cases of themadrashigh court came to the conclusion that an alienation by de facto guardian for purposes of necessity alone would bind the estate of the minor. Thadavarthi bapayya and four others v. Myneni pundarikashayya, ilr (1946) mad 648: (1945) 2 mlj 508 again is an authority for the proposition that an improper alienation of property of a hindu minor by defacto guardian cannot be held to be binding on him (the m'nor until it is set aside, even though it may be voidable in the sense that he may'elect to ratify it or avoid it by treating it as a nullity. Patanjali sastri, j. , (as fie then was) at page 657 observed : -

"while an alienation by a defadto guardian for necessity has been held to bind the minor, this court ass repeatedly held that he need not sue to set aside an alienation without necessity by such a person within three yvears of attaining majority but can sue for possession treating it as a nullity just like a reversioner."

(9) Reliance was placed on thayammal v. Kuppanna koimdan ilr (1915) 38 mad 1125: (1914) 27mlj 285, and ramaswami pillai v. Kasinatha iyerair 1928 mad 276 (2). It was further observed:

". No improper alienation by a de facto guardian is binding on the minor until it is set aside, although it may be voidable in the sense that he may elect either to ratify it or avoid it by treating it as a nullity"

(10) Tims there is large consensus of opinion that unless an alienation by a de facto guard an is for legal necessity or for benefit to the estate the onus of proving which is on the alienee, the alienation will not be binding on the minor as that is an unauthorised alienation. If such alienation has been said to be voidable by judicial precedents as it is unauthorised it is open to the minor on attaining majority to ratify it, if he does not ratify it or express dissent to it it is not binding on him and he need not come to court to get it set aside. He may treat it a nullity and claim possession in the court. The expression "voidable" has been used only in this limited sense.

(11) The question with which we are mainly concerned in this case is that if an ex - minor in utter disregard of the alienations made by the de jacto guardian effects sale (i. E.) conveys the said property to others, is it competent for the vendee to sue for possession against the previous alienee or should it be said that what all the ex - minor had parted with was a mere right to sue and not any right in the property for she had none at the time of the transfer. There is great preponderence of opinion in favour of the conception that if the property is alienated by an ex - minor the conveyance will not be of a mere right to sue though title in favour of the vendee will no doubt be effective only if the court ultimately finds that the sale by guardian of the minor was not binding on the ex - minor. Indeed ramesam, j. , in putrevu kamardju v. Chunduri gunnayya and others 1923) i. L. R. 45 mad. 240, has observed that where a minor after attaining majority sells the property which has been alienated by the guardian on the footing that the sale by the guardian was not binding on him it must be held that he has chosen to avoid it and the result of it is that from his point of view he has got a complete title. Of course, the title will be effective if the court ultimately finds that the sale by the guardian is not binding on him. But contingent on that event he has complete title and this right is not a bare right to sue and is also assignable.

(12) The same view was expressed in palaniappa, gounddn v. Mallappa. Gounden 1951) 1 m. L. J. 265 viswanatha sastry, j. , after review of case - law on the point, observed, at page 272 thus :

"it does not, however, follow that the right to obtain a judicial recission of an unauthorised and therefore voidable transfer by a guardian, is a mere personal privilege of the minor as observed in (mttthukumdra, chetty v. Anthony udayar1914 29 m lj 617 : i. L. R. 38 mad 867, in: the passage already cited. It is a right annexed to the ownership of property or an interest in property and is available to the legal representative of a minor who dies without avoiding the transfer. Where an ex - minor transfers property uhauthorisedly sold by his guardian during his minority, he, transfers not a mere right to sue but his interest in the property, though a suit may be necessary to avoid the transfer by the guardian and possession of the property from his alienee. Conversely the liability of the transferee from the guardian is not a liability to pay damages for the unauthorised act'of the guardian, but is a liability to restore the property to the rightful owner or his transferee."

(13) In hanvmantappa ramappa ilagar v. Dundappd fakirappa builgol and othersa. I. R. 1934 bom. 234, wadia j. , repelled the contention that the plaintiff could not bring the suit because the minor had only a right to sue and this right could not be transferred to the plaintiff. The learned judge proceeded to consider whether, after the alienation of the suit property by the guardian the minor had only a right to sue for setting aside the alienation or had a right in the property which he could enforce by asking for possession. Referring to the test laid down in anandappa v. Totdppd 17 bom. L. R. 1137 the learned judge observed that it was unnecessary for the ex - minor to sue to have the alienation set aside. The burden would be on the defendants to show that the alienation to them had been for legal necessity and ramaswami (ex - minor) himself would have had a right to a share in the property which he could have enforced by asking for possession. His right was not one merely to bring a suit to have the alienation set aside, but a right to a share in the property, and his right he could validly alienated to the plaintiff.

(14) On a review of the various cases cited at the bar, we are of the view that as the alienations of a de facto manager or guardian are not binding on the minor unless they are for legal necessity or for benefit to the estate. In case the ex - minor transfers his rights in such alienated property it must follow that what he has transferred is not a mere right to sue but his entire rights in the property and his transfer would be binding unless and until it is proved that the alienation by guardian was for legal necessity or for the benefit to the estate or was warranted by the exigencies or necessities of the estate. The prohibition in section 6 of the transfer of property act therefore, has no application as the transfer was not a mere right to sue and therefore, the plaintiff's suit could not have been dismissed on that ground. It was necessary for the court to go into the question not only of the transfer by the widow but also the fact whether the alienations were for legal necessity or for benefit to the estate as would bind the widow. As the appellate court has not done so, we have no other choice but to remand the case so that the appeal may be disposed of in accordance with law. The appeal is accordingly allowed, the order of the couf t below is set aside and the appellate court is directed to restore the appeal and dispose it of in accordance with law. The costs will depend upon the final result of the appeal. The court - fee paid on the memorandum of second appeal will be refunded to the appellant. There will be no order as to costs in the civil miscellaneous appeal. Appeals allowed; matter remitted.