NARAYAN VYANKATRAO Vs. RAMCHANDRA NARAYANRAO

JUDGEMENT

(1.) THE question referred to this Full Bench by the Division Bench is whether a guardian of a Hindu adult under disability can alienate the property of the adult for legal necessity.

(2.) A Full Bench of this Court in Tiilsidas v. Haisinghji, 34 Bom LR 1483: ILR 57 Born 40: (AIR 1933 Bom 15) (A,), held that under Hindu Law a de faeto guardian of 3 minor can validly sell the property of a minor to a third person for legal necessity. The decision of the Full Bench was a majority judgment of Mr. Justice Palkar and Mr. Justice Barlee, Sir John Beaumont, Chief Justice, dissenting. Since then the decision of the majority has come to be accepted as established law and the Federal Court in Sriramulu v. Pundarikakshayya, 1949 FCR 65: (AIR 1949 FC 218) (B), in the judgment of Mr. Justice Fazi Ali at p, 84 (of FCR): (at p. 223 of AIR) states ;

(3.) THIS is almost the first case that has come before the Courts for consideration where the property is not that of a Hindu minor but of a Hindu adult who is under a disability, and the alienation is by his do facto guardian or manager, and Mr. Chandurkar's contention is that there is no distinction in principle between the case of a minor and an adult under a disability. What he points out is ihat both a minor and an adult who is insane or a lunatic in the eye of the law are incompetent to manage their affairs and look after their property, and it is precisely because of this reason that a de facto guardian is clothed with the authority of alienating the property of a disabled person if the alienation is for legal necessity or for the benefit of the property, and therefore Mr. Chandurkar says that it the decision in 34 Bom LR 1483: (AIR 1933 Bom 15) (A), is sound law as the Federal Court has taken the view that it is now fully established that that is the law governing Hindu minors, then, on principle there is no reason why the same decision should not apply to the ease of an adult Hindu under disability. Now, as has been often pointed out, a precedent is. a precedent for the case which it decides, and the jurisprudence which believes in law being made by precedents does not accept the proposition that there should necessarily be a logical extension of a particular decision given by the Courts, and there-fore it would be fallacious to suggest that because! in 34 Born LR 1483: (AIR 1933 Bom 15) (A), it was laid down that the de facto guardian of a minor can alienate for legal necessity, therefore logically we must extend that principle to the case of a Hindu adult under disability. It may be pointed out that the Bombay High Court came to the conclusion by a majority, and with respect the judgment of Sir John Beaumont, C. J. , even today makes very convincing reading- The learned Chief Justice points Out at p. 51 (of ILR Bom): (at p. 17 of AIR) :