The second appeal arises out of a suit by the plaintiff to recover certain properties purported to have been sold by his guardian on 20th March 1919 under Ex. 1 for Rs. 800 to defendants 1 to 3 and 10. Defendants 4 to 9 are members of an undivided family along with defendants 1 to 3, and defendants 11 to 13 form one undivided family with the 10th defendant. The District Munsif found that the sale was not binding upon the plaintiff and gave a decree. On appeal the Subordinate Judge differing from the District Munsif found that the sale deed was executed for necessity and dismissed the plaintiff's suit. The plaintiff files this second appeal.

In second appeal plaintiff's Advocate Mr. Jagannadha Dass argues that there is no legal evidence in support of the necessity relied on by the defendants. But before I discuss this question it will be convenient to dispose of another point raised by Mr. Sambasiva Rao the learned Advocate for the respondents as it arises first in logical order; it is that the suit is barred by limitation. This point was raised by the first issue. Both the lower Courts have found that the plaintiff's suit was brought more than three years after he attained majority. Mr. Sambasiva Rao contends that Art. 44 applies to the suit and the suit is therefore barred by limitation. Now, suits brought by persons to set aside alienations by their guardians during their minority may be divided into 3 categories:

(1) Where guardians are dejure guardians. Such suits are obviously governed by Art. 44. This is not denied by the appellant's advocate. See Fakirappa Limanna v. Lumannna Binmahadu (1) in which certain observations suggesting the opposite view in Balappa v. Chanbasappa (2) and Anandappa v. Totappa (3) (foot-note) were disapproved.

(2) Alienations by de facto guardians. To this class Art. 44 does not apply. (Vide Thayammal v. Kuppanna Koundan (4) and Ramaswami v. Kasinatha (5). Such alienations by de facto guardians can be ignored by a minor and he can bring a suit within the larger period, generally 12 years allowed by the general law. The transactions are not void because, if the alienations were for justifiable necessity, they may be upheld wholly or partially. They are only avoidable, but one has to use the term ‘voidable’ carefully in respect of such cases. Voidability by minors of such alienations is analogous to the voidability of widow's alienations by the reversioners who can ignore the widow's alienations and bring a suit within 12 years under Art. 141. See my Judgment in Second Appeal No. 13 of 1930. The word ‘voidable’ in such cases is not used in the same sense in which it is used in the law of contracts. See also in the matter of Amritalinga Tevan .

(3) Where the alienation is made by a person who pretends to be a guardian though he is not the real guardian and is only an intermeddler just for the purpose of the transaction. It is unnecessary to discuss the incidents of the third category as it is agreed on both sides that the present suit does not fall under that category.

The learned Advocate for the respondents claims that the present suit falls under the first category whereas the learned Advocate for the appellant claims that it falls under the second category. The question whether it falls under the first or second of the categories abovementioned really depends on the question whether the guardian who alienated the suit property should be regarded as de jure guardian or de facto guardian. For the purpose of deciding that question I have to state some further facts. The suit property belonged to one Baidharo an Oriya Brahmin who died in 1906 leaving a widow, a daughter, a mother and two sisters. Immediately after his death there were disputes about his property and the present plaintiff was alleged to be his adopted son. As he was then a minor his natural father put forward claims on his behalf. The disputes were settled by a partition between the various relations of Baidharo. (Ex. A dated 5th February, 1906). Soon after this a suit was filed by certain reversioners to set aside the adoption. The suit was resisted by the various persons who got Baidharo's property including the adopted son. The adopted son at first was represented by his natural father. Sometime afterwards he died and the natural mother was appointed guardian at litem by order dated the 12th September 1912. The suit was disposed of in favour of the defendants and against the plaintiffs on 18th November 1912. At the time of Baidharo's death his widow was a young girl of 10 and even at the time of the suit she was a minor. She attained her majority only after the disposal of the suit. The adopted boy, the plaintiff being under the protection of his natural father and natural mother from 1906 to 1912 continued to be under the protection of the natural mother and it is she, acting as his guardian, that executed Ex. I, the sale deed on which the defendants rely in this suit.

The question is whether under the circumstances stated above the natural mother can be regarded as a de jure guardian. In Thayammal v. Kuppanna Koundan Sadasiva Ayyar, J., stated that under the Hindu law the de jure guardians would be either the parents or a testamentary guardian and that no other can be de jure guardian unless appointed by Court with the possible exception of male and female ancestors. In stating this proposition he relied on two cases: Musst Bhikno Koer v. Musst. Chamela Koer and Kristo Kissen Neoghy v. Kader Moye Dossee . I agree with the proposition so laid down by Sadasiva Ayyar, J. The distinction between natural and adoptive parents did not arise in that case. The question now is whether when a boy is adopted the natural parents can be regarded as de jure guardians within the meaning of that proposition. In Lakshmi Bai v. Shridhar Vasudev Takle it was held in a conflict between the natural father and the adoptive mother that the adoptive mother had a preferential right to guardianship. This does not help us in the present case. In Ganjayya v. Ramaswami it was held that where a testamentary guardian and other relations are unwilling to act the natural mother of an adopted boy is a proper person to look after his interests. She can act for the benefit of the minor and bind his estate for necessary purposes and would be a lawful guardian within the meaning of Sect. 21 of the Limitation Act. As I already stated, a de facto guardian acting bona fide for the minor's benefit and in his interests may bind him by an alienation when it is made for justifiable necessity. In that sense he would be a lawful guardian. The decision mentioned does not show that he would be a de jure guardian within the meaning of Art. 44. In Gangaprasad Bhattacherjee v. Harakanta Chaudhuri(6), it is pointed out that the affection of the natural parents for their child does not cease merely because he is given away in adoption. Where the adoptive parents are not available the natural parents may also be very proper guardians; it is perfectly true. But it does not follow from this that the natural parents can be regarded as guardians de jure. In Anandappa v. Totappa(7) (foot note), the transaction was between the adopted boy represented by his natural father and the natural grandfather in respect of the office of vattan. It does not appear whether either the adoptive father or mother was living. But it is remarked in Fakirappa Limmanna v. Lumanna Binmahadu (8) that that being a case of alienation by one who is not the natural guardian the actual decision was correct though not the observations in it. This shows that the natural parent should not be regarded as the natural guardian of an adopted person. These are all the cases that are available on the matter. Now however much it may be true that the affection of the natural parents towards the adopted boy does not cease after the adoption it must be remembered that the theory of the Hindu law is that adoption amounts to civil death in the natural family and re-birth in the family of adoption. (Vide the remarks of the Judicial Committee in Reghurajchandra v. Subhadra Kunwar . In another decision of the Privy Council, Krishnamurthi Ayyar v. Krishnamurthi Ayyar , it was observed that a natural father about to give his boy in adoption could not be his guardian so as to bind him. It is true that the blood relationship between the natural parents and the adopted boy remains for the purpose of prohibited relationship in connection with marriage but except for this purpose all natural relationship must be regarded as at an tend. However much it may be desirable for a Court to appoint one or the other of the natural parents as the guardian when the adoptive parents are not available, it cannot be said that until appointment by Court the natural parents can be regarded as guardians de jure. I am therefore of opinion that Art. 44 does not apply to this case. The plea of limitation does not avail the defendants and they must succeed if at all on the merits. This takes me to the question raised by the appellant.

The sale deed in this case is Ex. I. It was for Rs. 800, consisting of (1) an amount required to pay off Rs. 400 due on an usufructuary mortgage dated 25th March 1914 (Ex. II), (2) the amount required to pay off Rs. 124 due on a promissory note (Ex. II-B) dated 24th June 1917 and (3) Rs. 200 due on a promissory-note dated 27th June 1916 (Ex. II-A) and (4) Rs. 76 required for Upanayanam of the Plaintiff. The mortgagee in Ex. II and the payee in Ex. II-B is the same person, namely, Narasimha Das, the father-in-law of the plaintiff's natural brother Of these three documents Ex. II purports to be for the purpose of discharging the debts borrowed from Mavudi Devo Bondu and others by the late Ganghadara Ratho, the natural father and the previous guardian of Plaintiff for the litigation expenses of the said minor. No purpose is mentioned in the next document Ex. II-A. In Ex. II-B the purpose mentioned is discharging a prior debt due to Padmanabha Ratho on behalf of the minor. Padmanabha Ratho has not been examined. There is no evidence in the whole record to show why that debt to Padmanabha Ratho was incurred. The document itself does not contain even a recital as to why it was incurred. It is impossible to regard this last debt as binding on the minor. The same remarks apply to Ex. II-A. The lower appellate Court seems to have thought that all the three debts may be regarded as having been incurred for the litigation expenses of the minor, the litigation being the suit by the reversioners disposed of in 1912. It is impossible to connect the promissory notes Ex. II-A and II-B of 1916 and 1917 with the suit which was disposed of in 1912, not to mention that there is no legal evidence in proof of such a connection. I am therefore clear that Exs. II-A and II-B are not binding on the minor. We now come to Ex. II, the usufructuary mortgage. It contains a recital that it was for the payment of a prior debt to one Mavudi Devi Bondu which was incurred for litigation expenses. The document itself being in February 1914 the prior debt would have been incurred in 1912 or 1913 and as a matter of probability there is nothing unreasonable in the recital. It must, however, be remembered that the recital itself is no evidence of the existence of the debt and an alienee who relies upon the fact of prior debts would be prudent if he adduces evidence to prove the existence of such debts by evidence de hors the document. In the present case all the evidence we have got is this: P. W. 1 the plaintiff says, “In the Sub Court I bore half the expenses”. What was meant was that the defendants in the suit made common cause, and half the expenses were borne by the other relations and half were debited to the minor, not that the minor himself found the money. P. W. 3 says, “Plaintiff's natural father bore half the expenses for litigation.” D. W. 1 the 1st defendant says, “To meet expenses for litigation. Ganghadar borrowed Rs. 400 from Dalibandhu and others”. But in cross-examination he says that he does not know why money was borrowed from Dalibhandhu and what was done with the Rs. 400 borrowed from Dalibhandhu and others. The judgment in the suit of 1911 is Ex. B. It shows that Rs. 150 were allowed for pleader's fee for the defendants. The defendants examined 11 witnesses in the case and they would have had to pay process fees for those witnesses. It is true that the plaintiffs are ordered to pay the costs to the defendants, but we do not know whether they were recovered or not. It is therefore clear, apart from the fact that the defendants have not adduced evidence tracing the mortgage Ex. II, to prior debts, that some expenses must have been incurred on behalf of the minor by his natural father and mother. The recital is evidence of a representation to the creditor in Ex, II that prior debts were incurred in favour of Dalibhandhu for litigation expenses. But the question arises whether all the Rs. 400 borrowed under Ex. II should be regarded as justified on account of such representation. Having regard to the fact that the defendants have not cared to trace the debt further beyond Ex. II. and having regard to the fact that the creditor in Ex. II. was content with the representation of a very general nature that Rs. 400 was required for litigation expenses without making further inquiries but on the other hand having regard to the fact that some expenses must have been incurred seeing that there was a prior litigation and also having regard to the fact that half only of the expenses were debited to the minor, I think I will be giving effect to the equities in the case by holding that about Rs. 160 in all that is binding on the minor for litigation expenses and adding this to the small item required for performing the Upanayanam which is also mentioned in the sale deed, I would say that on the whole about Rs. 200 is all that is binding on the minor. The amount required for the Upanayanam is stated as Rs. 76 in the sale deed. But D.W 1 states that it is Rs. 43, Rs. 48 being a mistake for Rs. 43. Adding this Rs. 43 to Rs. 160 the sum which in my opinion was likely to have been incurred in the litigation on behalf of the minor, i.e, as I said Rs. 200 is all that would be binding on the minor. But the sale was for Rs. 800. The result is that the whole sale deed is not binding on the plaintiff. If the plaintiff pays down Rs. 200 to the 1st defendant he would be entitled to recover the whole property.

The case having been set down to be spoken to this day, the Court made the following

ORDER.

As the plaintiff is succeeding to the extent of ¾th, and losing to the extent of ¼th strictly he would be entitled to get half of his costs, without paying any. But as half his costs comes to about Rs. 200 and more, I think it is best to set off the amount of costs towards the amount that the Plaintiff should pay. The result will be that he isentitled to recover the suit land paying no amount and receiving no costs. There will be therefore a decree to this effect with future mesne profits from this date up to date of delivery or three years according to O. 20, R. 12.

N. R. R.Appeal allowed.