(1.) A preliminary objection is taken that this appeal is out of time. The latest date for filing appeal is 21st June 1934. An application for leave to appeal in forma pauperis was made on 13th April 1934. The application resulted in an enquiry as to means. The finding is dated 26th July 1935. The application for leave was refused on 2nd October 1936 by Gruer, J., but he gave a month in which the appellant was allowed to pay the requisite fee. The fee was paid in that time. Nevertheless it is said that this Division Bench should review Gruer J.'s order. It should be made clear that under the rules of practice then operating single Judges did the interlocutory work relating to certain appellate work that will fall to be finally disposed of by a Division Bench. We will assume that Gruer J., was substantially acting as if he were the Division Bench and that his order could be revised by this, Bench. Even on that assumption, we see no reason to revise his order. The preliminary objection accordingly fails. This is an appeal by defendants 4 to 9 who are divisible into two classes. The first class consists of the minor children of Abde Ali and the second of the widow and major daughter of Abde Ali. The suit is on a mortgage effected admittedly by one Hasan Ali, the son of Abde Ali. The subject-matter of the mortgage is a house and a village. It is said that this mortgage is binding on the minors and on the widow and the daughter though they are not parties to the mortgage for two separate reasons, as to the minors because the mortgagor had been appointed Court guardian and this mortgage transaction had been sanctioned, as to the widow and the daughter because they had empowered the mortgagor to mortgage this property under a general power of attorney.
(2.) THE defendants took the point that the sanction of the Court was without enquiry and that the order giving consent to a mortgage was therefore of no effect and therefore that the mortgage transaction is voidable under Section 30, Guardians and Wards Act. In support of that proposition Prohlad Chandra v. Ramsaran and Venkatasani v. Viranna A.I.R. 1922 Mad. 135 have been cited. On the other hand, it is said that where in point of fact the Court has given sanction a person lending money on the faith of that sanction is protected by it, and the Privy Council decision in Gangapershad Sahu v. Maharani Bibi (85) 11 Cal. 379 is referred to. On the other hand, it is said that that decision is under the old law which merely provided that a guardian had no power to mortgage without an order of the civil Court whereas now more detailed provisions are to be found in Section 31 as to what the civil Court has to do and it is provided inter alia that the Court must be satisfied that there is a case of necessity and that it is for the benefit or advantage of the ward. Therefore it is said, as is held in Prohlad Chandra v. Ramsaran that there is a duty imposed on the Court to make an enquiry. If the Court makes no enquiry although its sanction is not null and void one is in the same position as though it had not been granted; that is to say, the transaction is voidable but is not absolutely void. In our opinion, one should be slow to hold that when a Court has granted sanction that sanction does not protect a subsequent lender of money who lends on the faith of that sanction and who is in no way a party to any slackness or fraud in obtaining that sanction. Here, however, the plaintiff mortgagee is in the unfortunate position of having lent money for purposes somewhat different from those that were sanctioned. The actual order sanctioning is very vaguely worded, It merely says: This is an application of one Hasan Ali, guardian of Abbas Hussain and others, for sanction to mortgage house No. 232/1 situate at the Kotwali Bazar, Jubbulpore and village Manera in order to pay off the debts incurred by minor's father. I accord my sanction to the mortgage of the house and the village Manera as I am satisfied that it is for the benefit of the minor.
(3.) WHEN the minors or principals avoid the transaction they can be held liable to restore what they have gained as a consequence of it. Did it appear from the evidence here that they had gained anything from it we might perhaps have ordered an amendment. There is however nothing in the evidence to prove that they gained anything. As to the minors they were not responsible for the debts that were paid; neither was the widow, nor the major daughter. J t has been urged that although the consent may not be effective to support the whole of this transaction it is effective to support part of it. As to the part used for the business it is urged that that is good because the Rs. 2048-8-0 was borrowed for a purpose that was necessary and beneficial to the minors who have been maintained out of the profits from the family shop. This case has not been pleaded, and in our opinion, the only way that the plaintiff could recover, granted that the sanction is ineffective, would be by way of restitution in accordance with the principles laid down in the following cases: Girraj Bakhsh v. Kazi Hamid Ali (f87) 9 All. 340, Sinaya Pillai v. Munisami Ayyan (99) 22 Mad. 289 , Mansaram Das v. Ahmad Hossain A.I.R. 1917 Cal. 235 , Hem Chandra v. Lalit Mohan 16 C.W.N. 715 , Tejpal v. Ganga (02) 25 All. 59, Nur Bakhsh v. Rukum Singh (11) 8 A.L.J. 754, Maqsud Ali Khan v. Abdullah Khan , Muhammad Ismail v. Gauri Parshad A.I.R. 1916 Lah. 285 and Parshotam Das v. Nazir Husain A.I.R. 1920 Oudh. 53.