JUDGMENT*
These three appeals arise out of three suits tried together by the City Civil Judge. The advisability of trying O. S. No. 555 of 1929 (C.C.C.A No. 18 of 1931) with the other two suits is open to question, but we propose to record our findings upon the issues when it raises quite separately. Certain facts may however be stated as common to the three cases.
We are concerned with a family of Indian Christians composed of Richard and Caroline Kent, husband and wife, and two daughters Sarah (Mrs. Borgonah) and Lydia. Richard Kent, who was an Inspector on the railway, owned a house, No. 6, Salai Street, Vepery, Madras, in part of which he was living up to the time of his death. The house consisted of two distinct portions, a front part and rear part, and these figure separately in the later transactions. In 1913 Richard Kent executed two successive mortgages of the whole property to a Marwari Sowcar named Birchand for sums of Rs. 500 and Rs. 100 respectively. In 1914, under Ex. D, he made a gift of the property to his wife and daughters. In 1916 Birchand sued upon his mortgages (O. S. No. 422 of 1916) and obtained a preliminary decree. Thereupon, in spite of the gift deed, on the 25th December 1916 Richard Kent executed an agreement to sell the front part of the house to one Muniswami for a sum of Rs. 1500 and acknowledged an advance payment of Rs. 100. Less than a month later, on the 20th January 1917, Richard Kent died, and less than a month after his death, on the 17th February 1917, the widow executed a sale deed, Ex. E, of the front part for herself and as guardian of her two daughters, to Muniswami's daughter Bangarammal for Rs. 1500. Out of this consideration a sum of Rs. 1150, as the receipts EX. V and V-a show, was paid to Birchand in discharge of the mortgage debts of 1913 and of some smaller loans advanced to Caroline.
This sale is the subject-matter of O. S. No. 555 of 1929. The plaintiff is Lydia Kent and she sued in forma pauperis for a declaration that it was not binding upon her and for partition and delivery of her one-third share in the property under the gift deed. It is probable that the elder daughter would have joined in this claim had she not allowed it to get barred against her. The lower Court has held that the gift deed, which was impugned as benami or nominal, was valid and that the sale is not binding upon the plaintiff, who has been given a declaration accordingly. The appellant is therefore the vendee, Bangarammal, who was the 1st defendant in the suit.
The grounds adduced for holding that the gift deed is nominal are, in view of the relationship between the parties, quite inconclusive, and it has been recognised before us that it is not open to the vendee to attack this document, forming as it does the title of the vendors relied upon in the sale deed. We agree with the lower Court in holding that the plaintiff has a valid title under that instrument:
The plea that the sale deed is not binding to the extent of the plaintiff's share is based firstly, upon the contention that the mother was not in any circumstances competent to alienate her daughter's property, and secondly, that if she was competent to do so in circumstances of necessity, such necessity has not been proved.
The powers of a mother, as guardian, in communities not governed by Hindu or by Mahommadan law do not appear to have formed the subject of express judicial decision. There are cases decided under Mahommadan and under Hindu Law but the principles upon which they rest are not necessarily extensible to other communities. The Mahommadan Law decisions exemplified by the Privy Council cases Mata Din v. Ahmad Ali , Imambandi v. Mutsaddi (2), and Mohammad Ejaz Husain v. Mohammad Iftikhar Husain (3), establish the proposition that a mere de facto guardian, i.e, a person who has charge of the minor's person and property but has no legal claim to be the guardian, has no power to convey to another any right or interest in the minor's immovable property, and that any such conveyance will be void as against the minor. Under the Mahammadan Law the position of a mother is merely that of a de facto guardian. The position of a de facto guardian under the Hindu Law has been discussed by Kumaraswami Sastri, J., in a case to which one of us was a party, Ramaswami v. Kasinatha (4), and the proposition was accepted, largely upon the principle of stare decisis, that such a guardian under the Hindu Law is in the same position as a dejure guardian so far as acts done for the minor's benefit are concerned. As regards other communities, we do not think that much assistance can be obtained from an examination of the English Law, as the mother's powers have been defined by statutory enactment. No doubt in such communities also an act done by a mere de facto guardian, which means a person having none of the rights of a guardian, would not bind the minor and would be void against him. This has been decided by Madhavan Nair, J., in Sudra Nadan v. Annamalai (5). But a mother, the father being dead does not we think fall within this category, but is certainly for many purposes the natural guardian of her minor child. She is for instance entitled to the custody of the child and to the guardianship of its property. Trevelyan (The Law relating to Minors, 6th edition, pages 167-8) states that “the law applicable to persons other than Hindus and Mahommadans does not permit guardians, other than those appointed by the Court, or having power given to them by the instrument appointing them, to sell or charge the immovable property of their wards”. But he adds that an alienation by a guardian, which does not bind the minor, is not void, but voidable at the instance of the ward. Upon such avoidance the minor would have to repay any money advanced for his benefit. The same conclusion, that such a transaction is voidable and not void, may, we think be drawn from certain provisions in the Guardians and Wards Act. Sections 28 and 29 provide that the powers respectively of a testamentary guardian and of a guardian appointed by the Court shall be limited by the terms of the instrument or of the order appointing him. The question then arises as to the effect of an alienation of the minor's property entered into by the guardian in excess of those powers and S. 30 provides that such a disposal of immovable property is voidable at the instance of any other person affected thereby as, e.g, the minor. Upon the same principle we think that an alienation effected by a natural guardian such as a mother will be voidable and not void. If it is voidable, the question of limitation will arise in the connected appeals and may be dealt with here. The only cases cited to us relate to Hindus but we think that the same principles will apply because the reasoning is quite general. In Dip Chand v. Munni Lal , it has been held that Art. 44 of the Limitation Act applies, the learned Judges observing “The words of this Article are very general and have application to every case in which a ward, on attaining majority, impugns the transfer made by his or her guardian during his or her minority, and there is absolutely no warrant for restricting the application of that Article to cases of transfers made by a certificated guardians.” It is added that the word ‘guardian’ as used in the Article is of general import and includes natural and testamentary guardians and guardians appointed by Court. Similar views have been expressed by this Court in Munugarra Satyalakshmi Naraya v. Munugarra Jagannadham , and Arumugam Pillai v. Panayadian Ambalam . We conclude therefore that a minor must sue within the three years allowed by the Article for a declaration that the transaction is not binding upon him.
The second question raised with regard to the sale is whether it was in the interests of Lydia Kent. The learned City Civil Judge has discussed this matter from various points of view and has come to the conclusion that Caroline Kent was not a free agent and that the price paid for the property was inadequate. The evidence relating to the value of the front portion of the house is not very definite. Sarah Borgonah, P. W. 1, says that it is worth Rs. 6000 but this has not been corroborated. She further says that it has fetched a rent of Rs. 30 per mensem, and a receipt Ex, F has been filed executed by Bangarammal in 1929. A house which fetches such a rent should be worth something like Rs. 4000 and even in 1917, when the sale took place, such a house must have been worth more than Rs. 1500. It is stated that the front half is larger than the rear half, and, as we shall see, Birchand advanced money on mortgages of the rear half to the extent of Rs. 1600 principal, and this debt aggregated to a sum of Rs. 4700 at the time of these suits. This suggests that even the rear half is worth more than the price obtained for the front half. The argument that Richard Kent himself agreed to accept Rs. 1500 for the property does not, upon examination, carry us very far. In the first place the property was not his, as he had gifted it to his wife and daughters. The agreement to sell was executed, as has been said, within a month of his death, and at a time when according to his widow he was very seriously ill. It was executed under threat of Court sale and by it Richard Kent obtained a sum of Rs. 100 in cash while providing for the discharge of the decree debt. The agreement, it is said, was arranged by Birchand himself, doubtless as an easy means of obtaining his money. After Richard Kent's death the widow says that Birchand came to her and told her that the house had already been sold to Muniswamy and made her execute a sale deed, giving her Rs. 200 and taking the remainder himself. She is an illiterate woman and there is nothing to show that she obtained any independent advice. The property represented at least one half of the family assets and its sale deprived them of a substantial source of income. We see no reason to differ from the view that it was not in the interests of the minor daughter and not binding upon her. The learned City Civil Judge has given her a decree declaring this and she is entitled to a one-third share in the property. But this is to lose sight of the fact that the property as gifted to the mother and the daughters was subject to the two mortgages of 1913, and these having been executed by the father were binding upon them. They were discharged out of the sale price and accordingly the vendee must have a charge upon the property to the extent of the sum so paid. This would have amounted, it is calculated, at the date of sale to Rs. 1058. The decree will be modified accordingly. Further the lower Court has only given a declaration and has added a note that the plaintiff undertakes to take her remedy of partition in execution. This is not the correct course. The plaint asks for partition as well as for a declaration and there should have been a preliminary decree for partition. We accordingly pass such a decree and the case will be remitted to the lower Court to proceed with the partition and pass a final decree. Having regard to the indivisibility of the property, recourse should, if necessary, be had to Ss. 2 and 3 of the Partition Act, IV of 1893. This disposes of C. C. C. A. No. -18 of 1931, in which the appellant has succeeded only with regard to the charge for the mortgage debt. Each party will bear their own costs throughout.
Of the suits out of which the other two appeals (Nos. 34 and 35 of 1931) arise, O. S. No. 615 of 1929 was brought by the two daughters against Birchand and another sowcar, and impleading the mother, for a declaration that two mortgages affected by the last-named on the 5th April 1918 and the 5th July 1922 upon the rear half of the property are not binding upon them. O. S. No. 286 of 1930 was a mortgage suit filed by Birchand to enforce the earlier of the above mortgages.
This earlier mortgage (Ex. IX) was executed on the 5th April 1918 by Caroline Kent for herself and as guardian of her two daughters, and was for a sum of Rs. 300 repayable with interest at 30 per cent. The deed recites that the money was borrowed for executing repairs to the mortgaged property “in pursuance of the requisition of the Corporation of Madras for carrying out repairs.” In proof of the need for such repairs a notice Ex. VI dated the 2nd October 1917 addressed to Mrs. Kent by the Health Officer has been filed; but this is only a reminder notice, and it contains no particulars of the work found necessary. The lower Court has accepted Caroline Kent's evidence that she received only Rs. 200 in cash and that for the balance the Sowcar made her take some furniture valued at Rs. 80. Out of this sum she says that Rs. 30 was spent on the repairs and Rs. 150 on paying small debts, and on maintenance. This, it will be noticed, is at variance with the recital. The lower Court in this state of the evidence has found that a sum of Rs. 100 may be taken to have been spent upon repairing the property and finds that this amount is binding upon the daughters. They have not themselves appealed against this and we can find no reason to interfere with the conclusion. So far as the elder daughter is concerned however the suit is admittedly time-barred if, as we have decided above, Art. 44 of the Limitation Act applies. In her case therefore the suit so far as it relates to the mortgage of the 5th April 1918, must be dismissed. As regards the 2nd plaintiff, Lydia Kent, there will be a declaration that it is binding only to the extent of Rs. 100. We think further that interest at the rate of 30 per cent was excessive and we reduce it to 15 per cent, for which the decree will provide. In the mortgage suit O. S. No. 286 of 1930 brought by Birchand upon Ex. IX, the decree will be brought into conformity with these conclusions.
The later mortgage in respect of which a declaration is sought is Ex. III, executed on the 5th July 1922. This discharged an earlier mortgage, Ex. II, which Caroline Kent executed for Rs. 600 on the 24th August 1920 to the Puckraj Sowcar, interest again being 30 per cent. This sum of Rs. 600 was borrowed according to Ex. II, for the purpose of discharging debts incurred in connection with the marriage of the elder daughter Sarah and two promissory notes, Exs. VII and VII-a, for Rs. 150 and Rs. 100 respectively have been produced as part of the debts discharged. It is further said, contrary to the recital, that the Rs. 600 included some interest due upon Ex. IX. We may draw attention to the defectiveness of the recital in this as well as in the other mortgage-deeds. The document does not specify the debts which had to be discharged and such promissory notes as have been produced, do not state the purpose of the loan. The creditor in each case was aware that the mother was pledging the property of her daughter and that he might be required to justify the advances made in each case. The learned City Civil Judge has gone so far as to disbelieve in the truth of the payments under Exs. II and III. This is certainly the version of Caroline Kent herself. In point of fact, it is unnecessary from the point of view of the daughters to decide whether the consideration under Ex. II was real or not. Accepting the recital that the money was all spent on Sarah's marriage, it is not suggested that it would be binding upon her sister. And so far as Sarah herself is concerned she was married on the 31st July 1918, so that at the time of the execution of Ex. II her husband, and not her mother, would have been her guardian. Accordingly Ex. II is not binding upon either daughter. We come then to Ex. III, a mortgage for Rs. 1300 executed to Birchand's brother, the 2nd defendant in O. S. No. 615 of 1929, by the mother for herself and her daughters. For the reason already given this mortgage too is void as against Sarah Borganah. As against Lydia the recital in the document states that the consideration was received for discharging Ex. II, for repairs and for maintenance expenses. It has been calculated that the sum due at that date under Ex. II was Rs. 930 and this, as has been found, is not binding on Lydia Kent. Of the balance, Rs. 210, due under two promissory notes Exs. VIII and VIII-a, is said to represent sums borrowed by Caroline for maintenance, while the remainder Rs. 160 represents interest due under the earliest mortgage, Ex. IX. Inasmuch as we have found only Rs. 100 under Ex. IX binding upon Lydia, a proportionate reduction in the interest and in the rate of interest due will give a sum of Rs. 25 as binding under this head. As for the money alleged to have been spent upon maintenance, no particulars have been proved and Lydia herself states that after Sarah was married she took her to live with her and paid her school fees. It may well be therefore that such money as was obtained for maintenance was spent by the mother upon herself. The result accordingly is that we find Ex. III binding only to the extent of Rs. 25. In Appeal No. 34 of 1931 (O. S. No. 615 of 1929) the decree will state that the mortgage of the 5th July 1922 is not binding on the 1st plaintiff and is binding on the 2nd plaintiff only to the extent of Rs. 25, with interest at 15 per cent to date of decree, and subsequent interest at 6 per cent per annum. As the appellants in Appeals Nos. 34 and 35 of 1931 have substantially failed they will pay the costs of the contesting respondents.
N. R. R.Decrees accordingly.