Kumaraswami Sastri, J.:— Appeal No. 213 arises out of a suit filed by the plaintiffs who are brothers and sons of one Arunachalam Pillai to set aside the sales and mortgages referred to in the plaint effected by one N.S Ramaswamy Pillai, now deceased who, it is alleged, purported to act as their guardian though he had no right to do so and made the alienations complained of. The defendants in that suit were the alienees. Appeal No. 214 arises out of a suit filed by a mortgagee from the aforesaid guardian who seeks to an force his mortgage on the ground that the mortgage is binding on the plaintiffs. The title of the plaintiff's father to the properties alienated by the guardian is not disputed. Though the suits were not between the same parties the evidence recorded in one suit was by consent of parties treated as evidence in the other and one judgment was delivered in both the suits. The Subordinate Judge held that the mortgage was for necessary purposes and binding and as regards the sales he held that the sales of the properties in Schs. E, F and G were not binding on the plaintiffs, but that the other alienations were binding. The defendants concerned in the properties decreed to plaintiffs have filed no appeal and we need not consider them further. He held that three of the sales were good as they were for purposes binding on the plaintiffs, and against this decree the plaintiffs in O.S No. 48 of 1919, who are defendants in O.S No. 19 of 1919, appeal.

2. The properties in dispute in O.S No. 48 (appeal No. 213) are the properties comprised in Schs. A, B and C, which were purchased by the defendant 1, the property comprised in Sch. D in which defendant 9 is now interested and the property comprised in Sch. H, in which defendants 19 and 20 are interested. The plaintiffs alleged that Ramaswamy Pillai purported to act as their guardian under a will alleged to have been executed by their father, that the will is not genuine and that even, if genuine, it would not affect the properties concerned as the properties were joint ancestral properties. The father of the plaintiffs in O.S No. 48 died on the 30th January, 1906. The will which is alleged to have been executed and which the defendants set up as genuine, is dated 29th January, 1906, the day before the testator died. The second wife of the deceased, who is the stepmother of plaintiff 1 and the mother of the plaintiff 2 presented the will for registration and it was registered by the Sub-Registrar. The will after referring to the illness of the testator Arunachalam Pillai and to the fact that he has a minor son Ramaswami Pillai and a daughter Meenakshi, and that the second wife was in the family way proceeds as follows:

I have nominated Ramasami Pillai Avl, son of Swaminatha Pillai of Nagampadi, Mayavaram taluk, as guardian to protect my family until the said minor Ramasami Pillai attains his age of majority. He himself should have entire management of the immovable and moveable properties belonging to me, recover the debts due to the family, discharge the debts due by me by selling away the lands if necessary and carry out whatever is required to be done in the family. For performing the marriages of my minor sons and daughters he should spend only as much as is consistent with the means and circumstances of the family and have the marriages performed.

3. It then proceeds to provide for his second wife and his mother and states that, if his junior wife begets a son, all the immovable and moveable properties of the family should be divided equally. Plaintiff 2 is the posthumous son of the testator. The Subordinate Judge found the will to be genuine and so far as the genuineness of the will is concerned I see no reason to differ from the Subordinate Judge. It is unnecessary to pursue this matter in detail as it was conceded both in the lower Court and before us that as the properties are admittedly ancestral properties, the decision of the Full Bench of this Court in Chidambaram Pillai v. Rangasami Naicker(1) would render the will invalid and in operative. It was held in that case by the Full Bench differing from the view taken by the Bombay High Court in Krishnappa v. Ramachandra Mangesh(2) that the only adult coparcener of a Mitakshara family consisting of himself and his minor coparceners is not competent to appoint a testamentary guardian to the coparcenary properties of the minor coparceners. The case was argued on both sides on the footing that Ramasami Pillai purported to act as such. He was not the guardian: he had no legal authority to act as such. He was not the guardian under Hindu law and his position at best would only be that of a de facto guardian.

4. It is argued by the learned Advocate-General for the appellants that a de facto guardian under Hindu law has no power to mortgage or sell the properties of minors, that his position would not be better than an executor de son tort, and although he would be subject to all the disabilites of a guardian he could not clothe himself with rights so as to give a valid title to purchasers or to effect a valid mortgage of the property. On behalf of the respondents it is contended by Mr. Alladi Krishnaswamy Ayyar that a de facto guardian is under Hindu law in the same position as a de jure guardian so far at least as acts done by him for the benefit of the minors are concerned and that is regards such acts the same test is to be applied as would be applied in case of alienation by a legal guardian.

5. In Imambandi v. Mutsaddi(3) the question arose as to the position of a de facto guardian under Mahomedan Law and their Lordships of the Privy Council after a review of the authority, observed:

For the foregoing considerations their, Lordships are of opinion that under the Mahomedan Law a person who has charge of the person or property of a minor without being his legal guardian and who may therefore be conveniently called a “de facto guardian” has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant; nor can such transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment on behalf of the infant as a trespasser. It follows that being himself without title he cannot seek to recover property in the possession of another equally without title, and overruled the decision of the High Court in Ayderman Kutti v. Syed Ali(4), which rendered such alienation valid if for necessary or beneficial purchases. In dealing with de facto guardians their Lordships observed:

6. The term “de facto guardian” that has been applied to those persons is misleading; it connotes the idea that people in charge of a child are by virtue of that fact invested with certain powers over the infant's property. This idea is quite erroneous and the judgment of the Board in Mata Din v. Ahmad(5), clearly indicated it. In Mata Din v. Ahmad, which is also a case under Mahomedan Law Lord Robson observed:

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 unauthorized 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.

7. It is argued by the learned Advocate-General that although both these cases before their Lordships of the Privy Council were cases under Mahomedan Law, the same principle should apply to cases under Hindu Law as the observations of their Lordships are general and apply to all cases where a person without authority takes upon himself the duties of a guardian of the minors. Reference has also been made to Narayanan Nambudiri v. Ravunni Nair(6). In this case the question was whether the wife of a person who was of unsound mind could alienate the properties as guardian even for necessary purposes and Jackson, J., in dealing with the rights of a de facto guardian observed:

A de facto guardian is scarcely distinguishable from an intermeddle; he may act from the best of motives and in the best interests of the minors and their estates; but he is equipped with no special authority and the validity of his act depends upon their condonation. Most of the discussions in the Courts below is only relevant as showing that Pappi Antnajanam had moral justification for her acts; it does not show that she had legal authority.

8. Were the matter res integra, I would be disposed to hold that the observations of Lord Robson above 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 only passages in the Mitabsbara which may have any possible, application are paras. 27, 28, and 29, Chap. 1, S. 1 dealing with the law of inheritance. Para. 27 deals with property in the paternal grand-father's estate which is taken on birth by the sons and grandsons and limits the rights of the father. Para. 28 runs as follows:

An exception to it follows: even a single individual may conclude a donation, mortgage or sale of immovable property during a season of distress for the sake of the family and especially for pious purposes.

9. Paragraph 29:

The meaning of the text is this. While the sons and grandsons are minors and incapable of giving their consent to a gift and the like, or while brothers are so and continue unseparated even one person who is a capable may conclude-a gift by hypothecation or sale of immovable property, if a calamity affecting the whole family require it or the support of the family render it necessary, or indispensable duties such as the obsequies of the father on the like make it unavoidable.

10. These paragraphs only relate to the power of a member of an undivided family and it is difficult to see how they can apply to persons who are not members of the coparcenary assuming management. There are, however, a long series of decisions to the effect that in cases governed by Hindu law alienation by a de facto guardian would be binding if for necessity. The earliest decision of their Lordships of the Privy Council on this point is the well-known case of Hunooman Pershad Pandey v. Mt. Babooee Mundraj Koonweree(7), where their Lordships held that a de facto guardian of a Hindu infant had power for necessity to mortgage the minors' estate. Their Lordships observed:

It has to be observed that under Hindu law the right of a bona fide encumbrancer 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 charges had it emanated from a de facto and de jure manager) affected by the want of the union of the de facto with the de jure title. Therefore, had the Ranee intruded into the estate wrongfully and even practised a deception on the Court of Wards, or the Collector exercising the power of the Court of Wards, by putting forth a case of joint proprietorship in order to de facto defeat the claims of the Court of Wards to the wardship which is the case that Mt. Wagram supposed, it would not follow that those acts, however, wrong would defeat the claim of the encumbrancer.

11. After dealing with the facts their Lordships state the power of a guardian de facto or de jure as follows:

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, a bona fide 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.

12. In Mohamund Mondul v. Nafur Mondul(8) the question was whether a sale by the paternal grand-mother of the plaintiff who was found to be the de facto manager during his minority would bind the plaintiff and it was held on the authority of Hunooman Pershad's case that if there was a legal necessity such a sale would be binding. The learned Judges said that there was no distinction in such cases between a mortgage and a sale, necessity being the test to be applied in both cases. In Nathuram v. Shoma Chhagan(9), it was held that a mortgage by a person who was in management of the estate of a minor would be binding, if for necessity. In that case the mortgagor was the father's cousin, but being divided he would not be the legal guardian under Hindu law, though he was the nearest male relation according to the finding; for as remarked by Sadasiva Aiyar, J., in Thayyammal v. Kuppana Koundan(10), under Hindu law nobody except the father and the mother of a minor (with probable exceptions in favour of the elder brother and the direct male and female ancestors of the minor) is entitled as a matter of natural right to act as guardian. So far as this High Court is concerned it was held in Vembu Aiyar v. Srinivasa Ayyangar(11) that a de facto guardian has like a de jure guardian power to bind the minor with acts which are necessary. A similar view was taken in Arunachala Reddi v. Chidambara Reddi(12). In V. Seetharamma v. M. Appiah(13), the learned Judges on a review of the authorities held that an alienation by a de facto guardian for purposes of necessity would bind the estate of the minor. Mayne in treating of the powers of a guardian to bind the infant after dealing with the authorities on alienations by lawful guardians 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 hound, if in the circumstances the step taken was necessary, proper or prudent: see Mayne, 9th edn., para. 218, p. 297.

13. I am of opinion that the alienations complained of are not void as contended for by the learned Advocate-General, but that they should be tested by the same principles as would apply had the alienations been made by the de jure guardian of the minors. (The judgment then discussed the evidence and concluding that the plaintiff's father was leading a dissolute life and that there could be little doubt that the debts which he incurred must have been for meeting the expenses of his loose life, proceeded). The plaintiffs do not attack the sales executed by their father and we are only concerned with the mortgage executed by their guardian to discharge their father's debt which is the subject-matter of appeal No. 214, and with the sale-deeds executed by the guardian for a similar purpose which are the subject-matter of appeal No. 213. (The judgment then discussed the evidence and holding that the mortgagees were not aware that the debts incurred were incurred for immoral purposes, proceeded.) It has been held that proof of general immorality and waste of money is not sufficient to invalidate an alienation and as pointed out by their Lordships of the Privy Council in Hunooman Pershad's case, the proof that there was any antecedent mismanagement or waste is not sufficient when there is present pressure on the estate. I do not think there is sufficient ground to reverse the finding of the Subordinate Judge as regards the mortgage Ex. 8 and appeal No. 214 will, therefore, have to be dismissed with costs.

14. As regards the sales impeached which were executed by the guardian of the minors and which form the subject-matter of Appeal No. 213 the case stands on a different footing. (The judgment then discussed the evidence regarding the sale under Ex. 1 and concluded as follows.) Having regard to the income of the property and the expenses of the family which according to the evidence was then a small one, and having also regard to the fact that all that was given for the maintenance of the family by the guardian was as pointed out before only five kalams and Rs. 2 a month, I do not think there was any necessity for the guardian to sell the land under Ex. 1 much less at such a low price.

15. We find at the time of Arunachalam Pillai's death about 85 acres of land remained for the family and in 1908 Ramaswamy Pillai sells under Ex. 1 about 44 acres for Rs. 9,300. We find from the promissory-note Ex. 1(f), dated 7th August, 1904, the discharge of which is said to be one of the items of consideration mentioned in Ex. 1, that it was for Rs. 794. The promissory-note would have been barred, but for the endorsement made by the guardian on 3rd August, 1907. The amount of Rs. 794 borrowed under Ex. 1(f), in 1904 became Rs. 1,100 in 1908. The plaintiffs' father died in 1906 and I think that with the income from the property after deducting the amount paid for the expenses of the family the principal and interest due under Ex. 1(f), could easily have been discharged. The fact that the plaintiffs father who was a spendthrift and who was leading an immoral life, did not repay this amount when he died is no excuse for the guardian to keep the debt alive even assuming that a de facto guardian can acknowledge a debt so as to keep it alive. On this point the authorities are conflicting. Section 21 of the Lim. Act, says:

The expression “agent duly authorized” referred to in Ss. 19 and 20 shall, in case of a person under disability, include his lawful guardian, committee or manager or an agent duly authorized by such guardian, committee or manager to sign the acknowledgment or make the payment.

16. It can hardly be said that a person who takes upon himself the management of property without being the legal guardian under Hindu Law or a guardian duly appointed by the authority can be said to be lawful guardian under S. 21. S. 21 was enacted to put an end to the difficulties raised by the conflicting decisions on this point. As regards the authority of a guardian to acknowledge a debt on behalf of minors, in Bireswar Mukarjee v. Ambika Charan(14), it was held by Mookerjee and Walmsley, JJ., that under Hindu law in the absence of the father the mother is entitled to be the guardian of her infant sons in preference to their brother and that an acknowledgment made by the eldest brother was not an acknowledgment by a lawful guardian with the meaning of S. 20. In the present case the mother of one of the minors was alive and it is difficult to see how the de facto guardian can be said to have power to acknowledge the debt. I may also refer to Alagappan Chettiar v. Subramania Pandiya Thevar(15), where it was held, following Lindsell v. Bouser(16), that an authority to pay a debt does not necessarily import an authority to make a part payment of interest, so as to keep the debt alive. In Chidambaram Pillai v. Veerappa Chettiar(17), Sadasiva Iyer and Spencer, JJ., were of opinion that even lawful guardian has no right to renew or acknowledge debts unless it is for the benefit of the minors, or unless the document appointing him as guardian gave him such power.

17. Gita Presad Singh v. Ragho Singh(18) was referred to by the defendants, but the findings in that case was that the person who made the payment was the de facto guardian and there was nothing tangible on the records to show that he was not the lawful guardian. The learned Judges referred to certain suits and orders where he was described as guardian. If he was the lawful guardian S. 21 should certainly apply. Kailasa Paiayaohi v. Ponnu Kannu Achi(19), which was relied on for the defendants, only decides that where the natural guardian is allowed to manage the properties by the minor who has attained age, acknowledgment by the natural guardian would bind the minor who has become major. B. Tirupayya Gangayya v. Ramasivamy(20) is a decision of a single Judge of this Court. The learned Judge was of opinion that a person who is lawfully acting as guardian, though not legally appointed for the purpose, can bind the estate for necessary purpose and that such a person is a lawful guardian within the meaning of Section 21 of the Lim. Act, when acting for the benefit of the minor. The learned Judge does not cite any authorities and with all respect, it seems to me that the proposition which he lays down is too wide and does not give due weight to the meaning of “lawful guardian” in S. 21.

18. I am of opinion that the de facto guardian had no authority to acknowledge the debt evidenced by Ex. 1(f) so as to keep it alive, as I think that the amount duo under it could have been paid out of the income and that there was no necessity to keep the debt alive, and secondly I think the de facto guardian had no power to Keep the debt alive against the minors, as he was not their lawful guardian, committee, or the manager within the meaning of Section 21 of the Lim. Act.

19. As regards the sum of Rs. 760, which is alleged to be payable in respect of the decree in O.S No. 27 of 1906, and the sum of Rs. 2,140, which is alleged to be payable in respect of the decree in O.S No. 12 of 1906, and the sum of Rs. 5,300, which is alleged to be payable in respect of the decree in O.S No. 27 of 1906, it appears that execution was taken out in one suit for Rs. 2,000 and odd. The decrees, as I said before, were ex-parte decrees. The suits were filed shortly before the death of the father of the minors, but the decrees were passed after his death. Having regard to the yield and the value of the property, I think it was not a prudent act of management by the guardian to sell the land under Ex. 1 to meet the decrees. I think he could easily have raised moneys on the mortgage of the lands. Reference has been made to certain deeds executed by the father and it is sought to prove that, if regard he had to the value as contained in these sale-deeds, the sale under Ex. 1 was for adequate consideration. I have already pointed out that the father was an immoral man and a spendthrift and ran through a large portion of the property and the sales executed by him would be no criterion as to the market value of the lands. I think that in the case of de facto guardians alienations by them would require strict proof not only of necessity, but of adequacy of consideration, and it would be dangerous to hold that because there were debts due by the father it is open to anybody who chooses to take upon himself the management of the estate to sell the property of the minors for a price far below the market value of the land. In the present case we find that the de facto guardian of the minors, who himself was largely indebted, sold under Ex. 1 a large portion of the land left by their father and executed a mortgage (Ex. 7) over the rest. There is no evidence that he made any bona fide attempts to raise money on mortgage and it cannot be said that, having regard to the yield of the lands and to the small amount which was being paid by the guardian for the maintenance of the members and the widow of the deceased, the guardian could not by prudent management have paid off the debts left by the father by mortgaging the properties and paying off the mortgage out of the savings. I am of opinion that the sale-deed Ex. 1 is not binding on the minors.

20. As regards the plea of limitation all the High Courts have held that Article 44, Sch. 2 of the Lim. Act, 1877, which corresponds Article 44, Sch. 1 to the Act of 1908, does not apply to cases of alienations by de facto guardians. I need only refer to Mata Din v. Ahmed Ali, Thayyammal v. Kuppanna Koundan, Balappa v. Ghanbasappa(21) and Kothaperumal Thevan v. Ramalinga Thevan(22). (The judgment then discussed evidence relating to properties comprised in Schs. D and H, and holding that the claim was rightly dismissed by the lower Court proceeded). The question remains as to what relief the plaintiffs could get as regards the land covered under Ex. 1. Having regard to my finding as to the value of the land and the necessity for sale, three courses are open. The first course is to set aside the sale altogether and direct the plaintiffs to pay the vendee the consideration which is binding on them (plaintiffs) with interest. The second course is to direct the purchasers to pay the plaintiffs the difference between the actual value of the land and the consideration, which is binding on them, with interest. The third course is to divide the lands in proportion to the value of the lands and the actual consideration found payable. Having regard to the fact that, if the guardian had sold one-half of the land, the sale could not be impeached as the value of one-half would be sufficient to discharge the debts which were binding on the minors, and also the fact that lands have risen in value in recent years, I think the most equitable course would be to divide the property sold under Ex. 1 into two shares and give one moiety to the plaintiffs and the other moiety to defendants 1 to 5.

21. It is admitted on both sides that the land is capable of division, and there is no suggestion of any hardship in adopting this course. This course was adopted in Meenachi Ayyan v. Rangacharlu(23). During the course of the argument it was staged by both sides that this course would do justice between the parties, should it be found that the sale is not binding. In the result there will be a decree in appeal No. 213 of 1922, declaring that the sale under Ex. 1 is not binding on the plaintiffs and directing a partition of the land compromised in Schs. A, B and C between plaintiffs and defendants 1 to 5 by metes and bounds, the plaintiffs getting a half-share and defendants 1 to 5 getting the other half. The rest of the plaintiffs' claim is dismissed. Under the circumstances I direct each party to bear his own costs throughout.

22. Curgenven, J.:— I agree, and have nothing to add.

23. Order accordingly.