TULSIDAS JESINGBHAI PARIKH Vs. RAISINGJI FULABHAI VAGHELA

JUDGEMENT

(1.) The question that arises in this appeal is whether under Hindu law a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity. This question has been considered by various High Courts, but some difficulty arises in Bombay by reason of the decision in Limbaji Ravji V/s. Rahi Ravji A.I.R. 1925 Bom 499, in which it was held that a sale made by a step-mother on behalf of her minor son was a sale by an unauthorized person and the minor was entitled to have it set-aside. This point is dealt with in two lines on p. 579 (of 49 Bom.) no authority being quoted. Subsequently in a later case, liar Hal Ranchhod V/s. Gordhan Keshav A.I.R. 1927 Bom 611, it was held: A separated uncle of a Hindu minor, who has never intermeddled or acted as a guardian, cannot claim to be authorized as a guardian de facto to sell property on behalf of the minor. Such a person would be a guardian de hoc, and not a guardian de facto. A transferee however from such a person, who has made improvements on the property believing in good faith that he is absolutely entitled thereto is entitled to the benefit of Section 51, T.P. Act 1882.

(2.) At p. 1044 (of 51 Bom.) of that case, it was held that it was unnecessary to give any decision on the larger and even more important question as to whether a de facto guardian was entitled in Hindu law to sell a minor's property at all. A reference is made to certain cases and amongst them Limbaji Ravji V/s. Rahi A.I.R. 1925 Bom 499 and it is said p. 1045 (of 51 Bom.) One may feel a difficulty as regards the latter case, because the authorities such as they are in favour of the proposition are not referred to.

(3.) Reference is made to Hunooman Persaud Panday V/s. Mt. Babooee Munraj Koonweree (3) and Mohanund Mondul V/s. Nafur Mondul [1899] 26 Cal 820, and the learned Chief Justice goes on to say p. 1045 (of 51 Bom.) It may be therefore that if it had been necessary for that point to be determined in the present case we should have thought it advisable to have the matter settled by a Pull Bench, having regard to its great importance. But in view of our decision on the first point that is unnecessary. I only wish to add by way of warning that nothing that I have just said is to be taken as meaning that I necessarily disagree with the decision in Limbaji Ravji V/s. Rahi A.I.R. 1925 Bom 499.