HARILAL RANCHHOD Vs. GORDHAN KESHAV

JUDGEMENT

(1.) [His Lordship after stating the facts of the case, proceeded:] It is not necessary for us in the present case to define what particular circumstances must exist before a person can be described as a "de facto guardian", or have such powers that may properly belong to a de facto guardian, But speaking for myself 1 think there must be some course of conduct in that capacity before a person can be described as a guardian de facto. I am not prepared to extend that expression to a guardian ad hoc. In other words, I am not prepared to say that a person who over many years has never intermeddled or acted as a guardian can then come forward and claim to be a guardian de facto and authorised to sell property on behalf of a minor. In the view I take such a person would be a guardian ad hoc and not a guardian de facto. Accordingly I would hold that the evidence before us was wholly insufficient to establish that Rangila was guardian de facto at the material dates, and that the lower appellate Court was not entitled in law to arrive at the contrary conclusion on that evidence. That being so, it follows, in my judgment, that this sale was unauthorised.

(2.) Under those circumstances it is unnecessary to give any decision on the larger and even more important question as to whether a de facto guardian is entitled in Hindu law to sell a minor's property at all. We know that as regards Muhammadans it has been held in Imambandi V/s. Mustaddi (1918) L.R. 45 I.A. 73, s.c. 20 Bom. L.R. 1022 and Mata Din V/s. Sheikh Ahmad Ali (1912) L.R. 39 I.A. 49, s.c. 27 Bom. L.R. 621, s.c. 14 Bom. L.R. 192 that a Muhammadan de facto guardian has not that power. We know from In re Manilal (1900) 3 Bom. L.R. 411, F.B. that even though it was held that the Court has jurisdiction to authorise a Hindu father and manager to sell property on behalf of his infant son, still that power has to be exercised with the greatest caution. And if one turns to Limbaji Ravji V/s. Rahi (1925) I.L.E. 49 Bom. 576, it was held by Sir Norman Macleod and Mr. Justice Crump in effect that a Hindu step-mother has no such power. 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. I mean Hunoomanpersaud Panday V/s. Mussumat Babooee Munraj Koonweree (1856) 6 M.I.A. 393 and a further reference in Mohanund Mondul V/s. Nafur Mondul (1899) I.L.R. 26 Cal. 820. It may be therefore that if it had been necessary for that point to bo determined in the present case we should have thought it advisable to have the matter settled by a full 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 of Limbaji Ravji V/s. Rahi.

(3.) But that does not dispose of the case. The respondents relied on Section 51 of the Transfer of Property Act, and claimed that in any event they are entitled to the benefit conferred by that section, having regard to the improvements which they have made on the property. It is argued for the appellants that that section only applies if the transferor is not the evictor. But in our judgment that is not the true view of the section, and we see no reason why its operation should be cut down in the way suggested. On the contrary in Durgozi Row V/s. Fakeer Sahib (1906) I.L.R. 30 Mad. 197, a case of Muhammadans, where a mother purporting to act as de facto guardian of her minor son sold property and it was held that the sale was not binding, Sir Arnold White and Mr. Justice Subrahmanya Ayyar held that Section 51 of the Transfer of Property Act applied. Accordingly the transferee from the mother was held entitled to have an account taken of the improvements effected by him.