NAGAMMAL Vs. VARADA KANDAR

JUDGEMENT

(1.) Defendants 2, 8 and 10 in O. S. No. 96 of 1945 on the file of the Court of the Subordinate Judge of Trichiropoly are the appellants before us. On 9th March 1939, properties described in Schedule B to the plaint which belonged to plaintiff-respondent 1 who was then a minor were sold by defendant 6 his mother as his guardian along with her co-widows defendants 5 and 7 to appellant 1 (defendant 2) for Rs. 2900/-. The plaintiff two years after attaining his majority filed the above suit to recover possession of the properties after setting aside the alienation. The consideration of Rs. 2900/- was made up of 11 items, all set out in the sale deed. The extent of the lands old was 2 acres 48 cents. The learned Subordinate Judge found that the sale deed was true and the entire sum of Rs. 2900/- recited as its consideration was paid by defendant 2 in cash or by adjustment or paid by her husband, D. W. l on her behalf to the persons named as creditors in the sale deed or to the persons mentioned therein. The learned Judge also held that the price was fair and not far below the prevailing market value. Of the-11 items of consideration he found that three items did not represent real debts, namely, an alleged hand loan due to the plaintiff's maternal grandfather, a debt due to the Karur Vaisya Bank and a hand loan due to D. W. 2. As regards the other items, he held that though item 5 represented a real debt, it was not proved that any amount was payable to the creditor in respect of it, because of Madras Act IV [4] of 1938 and therefore this item should be left wholly out of account. A sum of Rs. 50/- was paid in cash on the date of the sale and it must be taken that the learned Judge had found that this amount was paid as mentioned. He, however, held that the amounts which would in law be due to the creditors after applying Madras Act IV [4] of 1938 would be a little less than the amounts mentioned in the sale deed and he arrived at the figure of Rs. 2225-9-0 as the amount which may be said to be lawfully binding on the plaintiff. The learned Judge then held that though the entire consideration was paid and though a major portion of the consideration was utilised for the payment of debts-binding on the plaintiff, nevertheless, the sale was not binding on the plaintiff, because there was no legal necessity and there were no circumstances to justify the alienation by the plaintiff's guardian. He therefore granted a decree in favour of the plaintiff for possession of the properties but directed the plaintiff to pay defendant 2 out of those properties Rs. 2225-9-0 with interest at six per cent, per annum from the date on which the plaintiff takes possession of the properties. Hence the appeal by defendant 2 and lessees from her, defendants 8 and 10. 2. We do not think that the learned Judge was justified in completely leaving out of account item 5 of consideration, namely, the debt due to one Vellaiyyppa Chettiar. On the record there was no proof whatever that that debt had been or would be discharged under Act IV [4] of 1938 and that was the only reason why the learned Judge thought he should leave it out of account. We are not also satisfied with his finding as regards items 4 and 7 of consideration, but we do not think it necessary to give a definite finding as regards these two items, because, in our opinion the appeal can be disposed of on the finding that the amount left after excluding the three items which according to the learned Judge did not represent true loans was paid towards real and binding debts.

(2.) The conclusion of the learned trial Judge appears to our mind to have been largely based on two considerations. One of them was the sudden and steep rise in prices after 1942 con-sequent on the outbreak of the Great War. The learned Judge expressly says in para. 14 as follows :

(3.) What we have therefore to do is to judge the act of the guardian as it would appear to a prudent man at the time when the act was done. As Sundara Aiyar J. says in Vembu Iyer v. Srinivasa lyengar, 23 M. L. J. 638 at p. 643 : (17 I. C. 609):