BETTEGOWDA Vs. DYAVARASEGOWDA

JUDGEMENT

(1.) The suit in respect of which these appeals arise was filed by the plaintiff for recovery of possession of a house and a land alienated by his maternal uncle as his guardian. As regards the house defendant 2 who has purchased it from the maternal uncle of the plaintiff pleaded that the sale is for the benefit of the plff. who was a minor at the time and it is therefore binding on him. The learned Munsiff upheld his contention and dismissed the suit. But this decision of the learned Munsiff was set aside by the Additional Subordinate Judge, Mysore in R. A. 37/48-49. The learned Subordinate Judge was of opinion that there was no necessity to sell the house and he directed that possession of the property should be delivered to the plaintiff on his paying Rs. 90/- to defendant 4 who had subsequently purchased the property from defendant 2 as, in his opinion, the plaintiff has been benefited to the extent of that sum.

(2.) As regards the alienation by a 'de facto' guardian, it is settled law that he has, in case of necessity or benefit to the minor, power to sell or mortgage his property. It has been observed in -- 'Chennappa v. Dumania Thippe Rudrappa', 19 Mys LJ 199 (A) that

(3.) The point for consideration therefore is whether the maternal uncle of the plaintiff under whose care the plaintiff came after the death of his parents sold the second item of the plaint schedule property for the benefit of the minor. It must be remembered that it was in a village different from that in which the guardian and the minor lived. It was an old and dilapidated house and but for the fact that the plaintiff's maternal uncle was able to find a purchaser for it is likely that it would have fallen down and the retention of that property would not have been of any help to the plaintiff. On the other hand, the property was sold for a sum of Rs. 125/-. Out of this amount another house was purchased for a sum of Rs. 50/- and plaintiff's maternal uncle obtained a usufructuary morgtage of a dry land for Rs. 50/-. Considering the circumstances of the case, the sale of a small dilapidated house situated in a village in which neither the plaintiff nor the persons under whose care he came after he became an orphan lived, must be regarded as being beneficial to the plaintiff, and the learned Munsiff was right in dismissing plaintiff's suit with reference to this item of property. The appeal in S. A. 16 of 1949-50 is therefore allowed. The judgment and decree of the learned Subordinate Judge are set aside and the plaintiff's suit in respect of the second item of the plaint schedule is dismissed. In the circumstances of the case the parties will bear their own costs throughout.