Beaumont, C.J:—

This is a reference to a full bench on the question whether, under Hindu law, a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity. The question being a pure question of law, we are not concerned with the underlying facts whether the person who has purported to sell is in truth a de facto guardian, or whether the sale was in fact for legal necessity. Those matters we assume.

The question has been referred to a full bench because of the state of the authorities upon the subject. I will, therefore, state the position of the authorities before I deal with the question on principle.

We were referred in the first instance to certain texts of the Mitakshara and Manu, but it is, I think, clear that the Hindu law texts are silent upon this point. The passages relied on by Mr. Divatia in Manu are really dealing with matters of agency. For instance, there is a statement that “should even a slave make a eon tract in the name of his absent master for the behoof of the family, that master, whether in his own country or abroad, shall not rescind it”, and there are other passages to the same effect. But it obviously does not follow that because a slave may have authority to make a contract in the name of his absent master, he is, therefore, entitled to sell the master's, property.

The first case in point of date to which we were referred, and the one which has been considered by some of the High Courts in India to govern the question, is the case of Hunoomarvpersaud Panday v. Mussumat Babooee Munraj Koonweree. In that case the immoveable property of a minor was mortgaged to one Hunoomanpersaud by the mother of the minor, describing herself as the proprietor,, and the mortgage was held to be, valid by their Lordships. But it appears that in that case the father of the minor was dead, and the mother was therefore the natural guardian and the case cannot therefore be treated as an authority upon the powers of a mere de facto guardian. The case was properly a case of a de jure guardian, and I think that their Lordships recognised that because in the advice which they gave to Her Majesty they say: “Their Lordships are of opinion that the Ranee ought to be deemed to have executed the mortgage bond as and in the character of guardian of the infant.” It is quite true that in one part of the judgment their Lordships refer to the powers of a de facto manager, and in the case of an infant it is difficult to draw any distinction between the guardian of his property, and the manager of his property. But I think that their Lordships in those passages were referring to the powers of the manager of a joint family. In any case such observations are dicta only, and the actual decision is only that a natural guardian of an infant may dispose of his immoveable property.

The next case to which-I will refer is the case of Mohanund Mondul v. Nafur Mondul. In that case there was an alienation by the paternal grandmother of a minor's property, and that was held valid. That, therefore, is a direct authority in favour of the view that a guardian de facto of the property of a minor may sell the minor's immoveable property. The Court refused to draw any distinction between a sale and a mortgage.

The next case is the case of Seetharamanna v. Appiah. In that case there was an alienation by a de facto guardian, and it was held to be binding.

I may observe that in all these cases the sale was for legal necessity and no question as to necessity arose. So that both the Calcutta High Court and the Madras High Court have held that a de facto guardian of a minor may sell the minor's immoveable property, and in so holding they undoubtedly purported to follow the case of Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree.

Then the matter came before this Court in the case of Limbaji Ravji v. Rahi, and this Court came to a different conclusion. In that case the sale was made by a stepmother on behalf of her minor son, and the Court disposed of the matter in one sentence:—“We are of opinion that as the sale was by an unauthorised person the plaintiff was entitled to have it set aside”. No cases appear to have been cited to the learned Judges on that particular point, and it is, I think, clear that they did not appreciate that they were differing from the High Courts of Calcutta and Madras. However, the decision is perfectly plain that a person who is not a lawful guardian of an infant cannot sell the infant's immoveable property. Then the matter came again before another bench of this court in the case of Harilal Ranchhod v. Gordhan Keshav, and in that case the Court held that the person who purported to sell the infant's property was not in fact a de facto guardian and therefore the question of the powers of a de facto guardian did not call for decision. The learned Chief Justice, however, referred to the cases shortly, and he alluded to the fact that in Limbaji Ravji v. Rahi, no authority had been cited, and he says that, that being so, if the point had called for decision it might have been necessary to refer it to a full bench, and then be adds that nothing, which he has said is to be taken as meaning that he necessarily disagrees with that decision.

So that the position on the authorities appears to me to be that in the Hindu law texts there is nothing on the subject which is really relevant. The only alleged authority of the Privy Council dealing with the question under Hindu law is not really an authority upon the point. The High Courts of Calcutta and Madras have both come to the conclusion that a de facto guardian of a minor has the power claimed, and in so doing they considered that they were following the decision of the Privy Council. This High Court has come to a different conclusion, but, it would seem, without having had the advantage of a full argument, and without considering the views of the other High Courts. In the present case we have had the advantage of excellent arguments on both sides, and we have to determine which view is the right one. In my opinion, we are not justified in overruling the decision of our own Court unless we are satisfied that it was wrong in principle, or was opposed to authority which was binding on this Court.

Dealing with the matter as one of principle I apprehend that if a person claims the right to sell the property of another, he must establish his title so to do. In many cases the right to deal with the property of another may arise from the legal relationship between the parties. But it is certainly strange to suggest that such a power can be acquired by a relationship which has no legal sanction. A so-called guardian de facto is not a guardian at all. He is merely a person who has assumed without authority to act as guardian, and it is a strong thing to hold that by such assumption he has acquired the right to deal with the minor's immoveable property. That view of the matter was very clearly expressed by Lord Robson in delivering the opinion of the Privy Council in Mata Din v. Ahmad Ali. The particular passage to which I refer is at page 55. Lord Robson says:—

“It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent, and, as such, were entitled to sell his property, provided that the sale was in order to pay his debts and was therefore necessary in his interest. It is difficult to see how the situation of an unauthorised guardian is bettered by describing him as a ‘de facto’ guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it.”

In that case their Lordships were dealing with the question under Muhammadan law, and it has been held since in Imambandi v. Mutsaddi that a de facto guardian cannot, under Muhammadan law, sell an infant's property. But the passage to which I have referred seems to me to state a general proposition of law which is as applicable to Hindu law as to any other system. I express an opinion on a pure question of Hindu law with diffidence, but I am confirmed in my view by the fact that my brother Patkar, I believe, concurs with me in this part of the case, and also by what was said by Mr. Justice Kumaraswami Sastri in the case of Ramaswamy v. Kasinatha (p. 229):—

“Were the matter res integra, I would be disposed to hold that the observations of Lord Robson above quoted [i.e those I have quoted] would be applicable equally to cases where the parties are Hindus as there is nothing peculiar to the Hindu system of jurisprudence which confers on a person who without authority assumes the office of guardianship any special powers.”

The principle enunciated by Lord Robson has been applied, by the Madras High Court in the case of Sundara Nadan v. Annammal to Indian Christians. It has also been applied in Ranja Khan v. Ma Chit to Burmese law, and it is of course clear that under English law a de facto guardian of an infant cannot sell the infant's property.

Mr. Divatia, however, says that under Hindu law a different rule should prevail. He says that in Hindu law the touchstone is necessity, and that once it is established that it is necessary in the interest of an infant that his property should be sold, then anybody who is in fact managing the property is authorised to sell it. He is, I think, realty seeking to draw an analogy between the position of a guardian of an infant and that of a manager of a Hindu joint family. The conception of a Hindu joint family under which minors become interested at birth almost necessarily involves the idea of a manager with power to dispose of the property in a proper case. But the position of such a manager seems to me to be essentially different to that of a guardian of a minor. Where there is no natural guardian available, the Court can appoint any person to be the guardian of a minor, and it is to be observed that if the de facto guardian in the present case had been appointed to act by the Court she would have had no power to make the sale in question without an order of the Court (see section 29 of the Guardians and Wards Act). It is indeed a strange conclusion that a power should be annexed to an office held without authority which would not be so annexed if the office were held under legal sanction. There is obvious risk of abuse in allowing unauthorised persons to deal with the property of minors. Nor do I see any advantage from the point of view of convenience in allowing such a practice, which imposes upon the purchaser the duty of ascertaining whether or not the vendor is in truth a de facto guardian, a question not always free from doubt as the case of Harilal Ranchhod v. Gordhan Keshav, to which I have referred, shows. For the above reasons I am of opinion that the question referred to us should be answered in the negative. But as my learned brothers take the view that we are constrained by authority to answer the question in the affirmative, that answer will have to be given.

Patkar, J.:—The question that is referred to the full bench is whether, under Hindu law, a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity.

There is no clear Hindu law text which would enable a de facto guardian of a minor to alienate property. The texts which have been referred to in the argument before us by Mr. Divatia are Mitakshara, Ch. I, s. 1, verses 27, 28 and 29 and Colebrooke's Digest of Hindu Law, Vol. I, pages 203 and 204. The texts in the Mitakshara have been construed by Banerjee, J. in Mohanund Mondul v. Nafur Mondul, as authorising alienation by a de facto manager of the property of the minor. The texts in Colebrooke's digest were relied on by Nanabhai Haridas, J. in Bai Amrit v. Bai Manik, as supporting alienation by the de facto manager. There is nothing explicit in those texts which would invest a de facto guardian of a minor with the power to alienate the minor's property.

I am, however, impressed by the view taken by Lord Robson in Mata Din v. Ahmad Ali, where it was observed (p. 55):—

“It is difficult to see how the situation of an unauthorised guardian is bettered by-describing him as a ‘de facto’ guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it.”

The question as to whether a sale by a de facto guardian for necessity or payment of ancestral debt of for benefit of the minor is void or voidable was not decided.

In the subsequent case of Imambandi v. Mutsaddi their Lordships of the Privy Council held that under Muhammadan law a mother has no power as de facto guardian of her infant children to alienate or charge their immoveable property, and that if there is no legal guardian, the person in charge of a minor has power as de facto guardian to incur debts, or to pledge the minor's goods and chattels, for the minor's imperative necessities, but has no power to deal with the immoveable property.

Those decisions of the Privy Council Seal with Muhammadan law and are based on explicit and clear texts of Muhammadan law. With regard to Hindu law I feel difficulty in accepting the view propounded in the above two judgments of the Privy Council by reason of the observations in the case of Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonwcree. It was observed as follows (p. 412):—

“Upon the third point, it is to be observed that under the Hindoo law, the right of a bona fide incumbrancer 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 jure manager) affected by the want of union of the de facto, with the de jure title.”

In that case an alienation was made by the Ranee, who was the mother of the minor, but the decision was based not on the ground that the alienation was made by the mother as the natural guardian of the minor, but on the ground that she was the manager of the estate; and at page 423 it was observed:—

“The power of the Manager for an infant heir to charge an estate not his own, is, under the Hindoo law, a limited and qualified power.”

The judgment further proceeds to describe the necessary elements which must be established by the alienee in order to support the charge or the alienation in his favour. The principle enunciated in the judgment of the Privy Council is embodied in section 38 of the Transfer of Property Act. The decision in Hunoomanpersaud's case has been treated in subsequent decisions of the Privy Council as relating to the powers of a manager for an infant heir, and the principles laid down therein have been extended to the alienations by the manager of a joint family, Sahu Ram Chandra v. Bhup Singh, to the alienations by a widow in possession of the estate not as a full owner, Baboo Kameswar Pershad v. Run Bahadoor Singh and to the authority of a shebait of an idol's estate held to be analogous to that of a manager for an infant heir, Prosunno Kumari Debya v. Golab Chand Baboo, Konwur Doorganath Roy v. Ram Ghunder Sen, and Vidya Varuthi Thirtha v. Balusami Ayyar. The judgment has also been construed in the various High Courts, as laying down that under Hindu law an alienation by a de facto guardian is not necessarily void, and is valid if supported by a justifying necessity.

In Mohanund Mondul v. Nafur Mondul which related to an alienation by a paternal grandmother who was the de facto manager of the minor's property, it was held by the Calcutta High Court that the alienation was not void, and if it was supported by necessity it was a valid alienation. The alienation in that case was a sale and not a mortgage as in the Privy Council case, and it was held that a de facto manager of an infant's estate has, in case of necessity or for the benefit of the minor, power to sell his property.

There is no difference between an alienation by way of mortgage or sale if it is justified by legal necessity: see Krishn Das v. Nathu Ram.

In Seetharamanna v. Appiah it was held by the Madras High Court that an alienation by the maternal uncle and de facto guardian of a Hindu minor, for a necessity of the minor, was valid under the Hindu law.

Coming to the decisions of this Court, it was held in Nathuram v. Shoma Ghhagan, following the case of Bai Amrit v. Bai Manik, that a father's cousin had power to borrow money on behalf of the minor which could be made a charge on the estate. It is true that it was not a case of an alienation but was a case of borrowing of money on behalf of a minor, but it was held that the father's cousin had authority to bind the estate of the minor. The money borrowed was, however, held to be a charge on the estate of the minor. In Bai Amrit v. Bai Manik there was an alienation by a mother which was supported on the ground that the powers of a de facto guardian include the power of alienation, and reliance was placed on the texts cited by Mr. Divatia from Colebrooke's Digest, Vol. I, pages 203 and 204. I may also refer in this connection to the case of Honapa v. Mhalpai. In Limbaji Ravji v. Rahi, which related to a sale by the step-mother, it was held that the sale was a void transaction on the short ground that it was by an unauthorised person. The grounds for the decision are not mentioned in the judgment. When the point arose in a subsequent case, Harilal Ranchhod v. Gordhan Keshav, it was suggested that when the question subsequently arose for decision, it might be referred to a full bench. The learned Chief Justice in delivering the judgment observed by way of caution that he should not be considered to have necessarily differed from the view taken in Limbaji Ravji v. Rahi, which was, however, distinguished on the ground that the person who made the alienation was not a de facto guardian but was guardian ad hoc.

The case, therefore, stands, in my opinion, as follows: On general principles I agree that a de facto guardian should not have the power to alienate the property of a minor. I also agree that there will be inconvenience in the matter of sales or conveyances of property belonging to a minor, and that it is desirable that before a de facto guardian purports to alienate property on behalf of the minor, he should get himself appointed as guardian under the Guardians and Wards Act. I have not to consider what the law on this point should be, but I am bound to ascertain the Hindu law as laid down by the ancient texts, and in the absence of texts as laid down by the decisions of the Privy Council. I think that the, decision of the Privy Council in Hunoomanpersaud's case has been considered consistently ever since that decision as supporting an alienation by a de facto guardian in case of necessity. I have referred to the decisions of the Calcutta High Court and the Madras High Court accepting that view. The same view prevailed in this Court till the decision in Limbaji Ravji's case. In Ramasivamy v. Kasinatha, though Kumaraswami Sastri, J. observed that he would be disposed to hold that the observations of Lord Robson would be applicable equally to cases where the parties were Hindus as there was nothing peculiar to the Hindu system of jurisprudence which conferred on a person who without authority assumed the office of guardianship any special powers, yet he found that he was bound by the long series of decisions to the effect that in cases governed by Hindu, law an alienation by a de facto guardian would be binding, if for necessity.

On these grounds I am not prepared to hold that an alienation by a de facto guardian, if for necessity, is necessarily void. I regret my inability to agree with my Lord the Chief Justice on this point, but I feel bound by the observations of the Privy Council in Hunoomanpersaud's case, as interpreted by the later decisions of title Privy Council and the decisions of the High Courts in India.

The conclusion reached by me is consistent with the views of Mr. Mayne and Sir Dinshah Mulla in their treatises on Hindu Law. Mr. Mayne in his Hindu Law, 9th Edition, page 297, observes:

“And where the act is done by a person who is not his guardian, but who is the manager of the estate in which he has an interest, he will equally be bound, if in the circumstances the step taken was necessary, proper, or prudent.”

Sir Dinshah Mulla in his Hindu Law, 7th Edition, page 568, observes that a de facto guardian is one who manages the minor's estate, such person not being a natural guardian nor a guardian appointed by the Court, and that a de facto guardian has the same power of alienating the property of the minor as a natural guardian, and that the, power of a step-mother to alienate the minor's property was not questioned when the question arose before the Privy Council in Lalla Bunseedhur v. Koonwur Bindeseree Butt Singh and expresses the view that the decision in Limbaji Ravji v. Rahi was wrong.

My view, therefore, is that the answer to the question, which has been referred to the full bench, should be in the affirmative.

Barlee, J.:—I agree with my brother Patkar that we must go back to the rule of Hunoomanpersaud Panday's case, a case which was disturbed for the first time by this Court by the decision in Limbaji Ravji v. Rahi. The point decided in Hunoomanpersavd's case was that an alienation by a mother, who was in charge of the property of an infant son, was binding on that son after he came of age. But their Lordships of the Privy Council treated the lady as if she was merely a de facto manager though in fact, according to Hindu law, she was the natural guardian and de jure manager. Strictly speaking this decision might be termed obiter so far as the rights of a de facto manager are concerned. But their Lordships evidently did not look upon it as obiter and it has never been considered in that light from that time. It has been followed by the Calcutta High Court in Mohanund Mondul v. Nafur Mondul, and by the Madras High Court in Seetharamanna v. Appiah, and by this Court in Nathuram v. Shoma Chhagan and in Bai Amrit v. Bai Manik, and it was looked upon as settled law that the rights of a de facto guardian were the same as those of a de jure guardian, until the decision in Limbaji Ravji v. Rahi. That decision was not based on a consideration of the authorities. Hunoomanpersaud's case was not even cited, and it appears that the point was not argued. This being the state of affairs, I do not think that we are justified in perpetuating the view adopted in Limbaji Ravji v. Rahi. It is a very recent decision whereas the rule in Hunoomanpersaud's case has been the law throughout India for sixty-eight or sixty-nine years, and is still the law in all other provinces of India. I do not think it is necessary to consider what the law should be, but agree with my learned brother Patkar that we must look upon ourselves as bound by this decision. I, therefore, would answer the question referred in the same way as he has answered it.

Answer accordingly.

J.G.R