B.K. Somasekhara, J.
1. The judgment and the decree of the learned District Judge, Adilabad (Mr. V.V.S. Krishna Murty) in O.S. No. 35 of 1971 dated 5.11.1982 have been the subject of assailment in this appeal. The appellants are the plaintiffs and the respondents are the defendants in the suit. The suit was dismissed.
2. Defendant No. 3 is the father and Defendant No. 4 is the mother of the plaintiffs. The suit is filed for declaration of title and possession of the suit property which is described in the suit schedule as Survey No. 764 of Mudhole with an extent of Acs. 34-14 guntas of land. The plaintiffs claim their title to the suit property; while they were the minor, their mother Defendant No. 4 alienated the suit property in favour of Defendant No. 1 under the suit sale deed Ex. A.2 equivalent of Ex. B.I dated 16.10.1956 without consideration, without any legal necessity, under the pressure and influence of their father, defendant No. 3, who was very easy going and gay in his style of life. They pleaded that such an alienation by Defendant No. 4 is not binding upon them and they are entitled to continue to have the title of the suit property and also the possession of the same and since the Defendant No. 1 did not concede to their request, they have to file the suit for declaration of title and possession of the suit property. It appears that Defendant No. 1 sold the suit property to Defendant No. 2 under the registered sale deed Ex. B.I (Sic) dated 5.3.1968 for a consideration of Rs. 5,000/- and put him into possession of the property. Since defendant No. 1 died during the pendency of the proceedings, Defendant Nos. 5 to 7 have been brought on record as his L.Rs. Defendants 1 and 2 contested the suit, whereas defendant Nos. 3 and 4 remained ex-parte. The L.Rs. of defendant No. 1 have not filed any separate written statement but they have adopted the contentions of Defendant Nos. 1 and 2.
3. Defendants 1 and 2 have denied the plaint allegations that the suit salre deed Ex. A.2 is without consideration, that it is not binding on the plaintiffs, that it was obtained under the pressure and influence of Defendant No. 3, the father of the plaintiffs, that it is not for legal necessity and that it is not binding on the plaintiffs. They have contended that the sale deed was executed for a valuable consideration of Rs. 5,000 which was paid to Defendant No. 4 on behalf of the plaintiffs, it was for legal necessity of the plaintiffs and to the benefit of their estate that it is binding on them, that Defendant No. 1 was put into possession of the property which he is continuing and that the plaintiffs are not entitled to any relief claimed in the suit. They also challenged that the suit is barred by limitation, it is not maintainable, it has no cause of action and that it is liable to be dismissed.
4. The matter on hand had a first round of litigation up to the High Court and went back for fresh disposal according to law. It appears that the suit was decreed on 31.1.1977, it was taken up in appeal before this Court in which a document was sought to be produced byway of additional evidence which came to be allowed, that came to be challenged in a Letters Patent Appeal in L.P. A. No. 24 of 1982 which came to be dismissed and the matter was remitted back to the Trial Court for fresh disposal according to law. That is how Ex. B-4, an agreement of sale said to have been executed by Defendant No. 4 in favour of Defendant No. 1 came to be marked. Defendant Nos. 1 and 2 have pleaded that prior to the sale deed Ex. A- 2, Defendant No. 4 had entered into an agreement with Defendant No. 1 agreeing to sell the suit on behalf of the minors for a consideration of Rs. 5,000/-, she received the consideration from Defendant No. l, he was put into possession by Defendant No. 4 under the agreement of sale, she undertook to obtain the permission of the prescribed authority under the Hyderabad Tenancy Act and after obtaining such a permission she executed the suit sale deed Ex. A.2 in his favour and, therefore, now they are not entitled to challenge either the agreement or the sale deed.
5. Before the matter was remanded when the parties went to trial both oral evidence and documentary evidence came to be produced wherein plaintiff No. 1 examined as P.W. 1 and got marked as many as 8 documents as per Exs. A-l to A-8. Defendant No. 2 examined himself as D.W. 1 and five more witnesses as D. Ws. 2 to 6 respectively and got marked as Exs. B-l to B-3 respectively and after the remand Exs. B-4 to B-6 were got marked on behalf of the defendants. On the basis of the pleadings the following issues were settled in the suit:
(1) Whether the suit is barred by time ?
(2) Whether the suit is maintainable ?
(3) Whether D-4 could not validly alienate the suit land ?
(4) Whether the plaintiff is entitled for declaration as prayed for in respect of sale deed dt. 15.10.1956 executed by D-4 ?
(5) Whether the plaintiff is entitled for mesne profits if so, for what amount ?
(6) To what relief ?
6. The learned District Judge, after affording sufficient opportunity to both the sides to address their arguments and after considering the materials placed before him, recorded the findings on issue Nos. 1 and 2 in favour of the plaintiffs, issues 3 to 5 against them and consequently dismissed the suit.
7. In this appeal although the memorandum of grounds challenged the judgment and decree as a whole including the findings on all the issues, Mr. J. V. Prasad, the learned Advocate for the defendants submitted that he is not pressing the plea of want (sic. bar) of limitation and the maintainability of the suit in issues 1 and 2 and, therefore, the learned Advocate for the appellants Mr. J.V. Suryanarayana Rao submitted that he is confining his appeal to the following grounds:
(1) The finding of the learned District Judge that the suit sale deed Ex. A- 2 is binding on the plaintiffs is not correct;
(2) The finding of the learned District Judge that the alienation of the suit property by Defendant No. 4 in favour of Defendant No. 1 is for legal necessity is not correct;
(3) The reasoning of the learned District Judge that Ex. B-4, the agreement of sale, is binding on the plaintiffs is not correct;
(4) The finding of the learned District Judge that Ex. A-2 is hit by Section 11 of Hindu Minority and Guardianship Act is not correct;
(5) The learned District Judge was not justified in decreeing (sic. dismissing) the suit by accepting the case of the plaintiffs (sic. defendants) and
(6) The judgment and the decree of the learned District Judges are liable to be set aside but resulting in a decree of the suit in favour of the plaintiffs.
8. The learned Advocate for Defendant Nos. 1 and 2 has tried to repel all the contentions and the grounds of appeal raised by the learned Advocate for the plaintiffs and in addition thereto, he has tried to demonstrate that whatever be the reasons given by the learned District Judge, judging the matter in any angle, it could not have been decreed and the suit ought to have been dismissed at any rate and that has been done justifiably. It must be said to the credit of the learned Advocates of both the sides that they have made their best efforts to assist this Court in dealing with certain important and complicated questions of law and facts involved in this appeal.
9. At the outset, it must be mentioned that the learned District Judge has put all his efforts and the mind to deal with the matter properly, but the only question is whether the findings reached by him with ratiocination can be totally supported or not. Both the facts and the law operating upon them have been dealt with meticulous details by the learned District Judge to reach certain conclusions whose correctness are being examined in this appeal. Although the question of limitation is not fully dealt with under issue No. 1, the finding is correct. The alienation of the property of the plaintiffs took place during their age of minority. Although there was some controversy regarding their respective ages, Exs. A.4 to A.6, the school certificates issued by the concerned authorities establish that they were minors at the time of the sale transaction, namely, plaintiff No. 1 was born in the year 1955, plaintiff No. 2 in the year 1961 and plaintiff No. 3 in the year 1968 respectively. In view of Section 6 contemplating the exclusion of the period of minority as a period of disability for the minors to challenge the sale transaction during the period of their minority, the period of limitation commenced to run from the date they attained the majority. The learned District Judge has tried to justify the individual rights accrued to them on particular dates by virtue of Section 7 of the Limitation Act, which, perhaps may not be correct. On a reading of Sections 6 and 7 of the Limitation Act, no such interpretation is possible in this case. It is a case of three plaintiffs having equal rights in the suit property at the relevant time. We do not know which part or which portion of them enure to their benefits if they establish their rights. In such a situation, there cannot be any fortification of individual right or liability to enforce their rights in law after they attained majority by virtue of Section 6 of the Limitation Act. The suit, being one for declaration of title and possession, is actually governed by Article 58 of the Limitation Act. Perhaps, a suit which could have been merely a simple one for possession based on title to get the benefits of period of limitation of 12 years under Article 65 of the Limitation Act has been deprived for the plaintiffs for filing the suit to be governed under Article 58 of the Limitation Act. Even then the suit having been filed within three years from the date of accrual of the cause of action, the suit was very much within the period of limitation. Thus not only such a finding is not challenged in this appeal but also such a finding deserves to be confirmed. Regarding the maintainability of the suit also, the alienation of the minor's property by guardians or anybody representing them results in the assailment by the minors after they attain majority and that cannot be prevented by anybody. That is the manner in which the plaintiffs have chosen to challenge the alienation of the suit property of Defendant No. 4, their mother, by filing the suit. Whether or not the relief is going to be given is a different question but that will not affect the maintainability of the suit. Therefore, the finding on issue No. 2 regarding the maintainability of the suit should also be confirmed notwithstanding that it was also not pressed by the affected parties.
10. Although there is no specific issue regarding the proof of the alienation under Ex. A.2 both regarding the execution, passing of consideration and adequacy of consideration and the genuineness of the transaction, such doubts were actually raised by means of allegations in the plaint. Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs, fairly conceded that not only from the evidence on record and the probabilities of the results flowing therefrom, the plaintiffs-appellants may not be in a position to successfully establish such contentions. On going through the relevant portions of the judgment rendered by the learned District Judge, this Court is convinced that the approach of the matter by the learned Judge is unexceptionable. The evidence is clear and emphatic that Defendant No. 4 executed Ex. A.2 in favour of Defendant No. 1 for a valuable consideration of Rs. 5,000/-. It is a registered document. The attestation is proved by examining the attestor. Defendant No. 4, having acted for the plaintiffs, not only failed to file the written statement but also failed to enter the witness box to deny the plaint allegations regarding the contents of Ex. A.2. The contents of Ex. A.2 were testified by Defendant No. 2 in his evidence. The collusion between the plaintiffs and Defendant Nos. 3 and 4 is apparent in their conduct. Their relationship and their conduct would establish such a fact. On the face of it, it is difficult to reject the formal proof of Ex. A.2 equivalent to Ex. B.1 or the correctness of the contents of the document much less the genuineness of the same. As already pointed out by learned District Judge, Ex. A.2 came out as a continuation and sequel to Ex. B.4, the agreement of sale, which came between Defendant No. 4 and Defendant No. 1 whose proof is also given sufficiently which is not dismantled either by the plaintiffs or by Defendant Nos. 3 and 4. All the terms of Ex. B.4 have been complied with. Not only the consideration of Rs. 5,000/- was paid to Defendant No. 4 by Defendant No. 1 under the agreement of sale Ex. B.4, but also Defendant No. 1 was put into possession of the suit property and admittedly he is continuing as such. As on the date of sale deed Ex. A.2, Defendant No. 1 was already in possession for almost six months. Defendant No. 4 in pursuance of the stipulation in Ex. B.4 to obtain the permission from the prescribed authority to execute the sale deed in favour of Defendant No. 1 actually obtained the permission and executed Ex. A. 2. That aspect is not only conceded but also not seriously challenged. In that view of the matter, by reading Exs. A.2 and B.4 a reasonable inference can be drawn that the transaction under Ex. A.2 was true, genuine and totally fulfilled. Regarding the adequacy of consideration, there was no justification for the plaintiffs to challenge. Actually the plaintiffs became the owners of the suit property by virtue of the sale deed Ex. A.1 dated 27.6.1950 in which consideration is mentioned as Rs. 5,000/-. Even after six years the property was sold for the same consideration although it is for a part of the land, namely, Acs. 34-14 guntas out of Acs. 98-00. In other words, the consideration under Ex. A.2 was patently and seemingly more than what the property deserved in view of the clear circumstances brought out under Ex. A.1. Therefore, that part of the contention of the plaintiffs challenging Ex. A.2 was justifiably rejected by the learned District Judge and that deserves to be confirmed by this Court.
11. Uncontrovertedly the plaintiffs were the owners of the suit property at the time of Ex. A.2. The learned District Judge his given a clear finding on this aspect based on evidence and clear circumstances. It is no doubt true that the suit property actually belonged to the joint family of Defendant No. 3, his brother and his father Hanumantha Rao. Due to certain financial difficulties, not only the suit property but also the property of the family to an extent of Acs. 179-39 guntas had been sold for a consideration of Rs. 12,000/- and by act of subsequent events, the same property came back to the family including the suit property. It appears that certain debts were discharged and the purchaser could not have released some of the properties in favour of joint family. It is in that context the suit sale deed came to be executed in favour of the plaintiffs by Defendant No. 3, his brother and his father Mr. Hanumantha Rao. Some how the parties appear to have reconciled to such transaction without raising any objection and even the contesting defendants, namely, Defendant Nos. l and 2 have gone by the admitted position that the plaintiffs became the owners of the suit property by virtue of Ex. A.1. Such a finding deserves to be confirmed.
12. Therefore, it emerged both from the admitted position and also from the proof that defendant No. 4, the mother of the plaintiff, alienated the suit property belonging to the plaintiffs in favour of Defendant No. 1 under Ex. A.2. An agreement had preceded it, as already pointed out, as per Ex. B.4 under which certain terms had been agreed and complied with except the execution of the registered sale deed Ex. A.2 which was done subsequently after obtaining the permission of the prescribed authority by Defendant No. 4. The learned District Judge has supported the validity of such a sale transaction or the alienation in favour of Defendant No. 1 by Defendant No. 4 on the ground that she did as a de facto guardian and for legal necessity and that it is binding on the plaintiffs both in law and on facts. The learned District Judge has given ample reasons in support of such a finding. But Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs, has not only attacked such a finding but also the reasoning on various grounds. According to him, Defendant No. 4 as a de facto guardian of the plaintiffs, during the life time of the natural and legal guardian Defendant No. 3, had no authority in law to alienate the suit property on the ground of legal necessity or to discharge the debts of the father, if that be, and to bind the interests of the minors in the suit property. The learned Advocate for the plaintiffs has also pointed out, while drawing the attention of this Court to the settled legal position, that even by pressing into service the doctrine of pious obligation the rights of the minors in the suit property being their own cannot be bound by alienation and as such the doctrine is applicable only to the joint family or the coparcenery property to bind their interest or share by operating such a rule. Mr. Prasad, the learned Advocate for Defendant No. 2 has made his best efforts to demonstrate that on facts it was a case of alienation of the property of the minors by the de facto guardian mother, Defendant No. 4, to discharge the proved debts of the father, to meet their educational expenses and maintenance expenses and for cultivation of the lands, perhaps, their own lands which were left after selling a portion of the same under Ex. A.2. In regard to the law also the learned Advocate has pointed out that the alienation of the property by a de facto guardian for legal necessity and the benefit of the estate is very well recognised in Sastric or traditional Hindu law and, therefore, such a finding of the learned District Judge to bind the plaintiffs with such an alienation is very much justified. Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs, in addition to the above contentions, has pointed out that Exs. A.2 and 13.4 are hit by Section 11 of the Hindu Minority and Guardianship Act as Defendant No. 4 who claimed to be a de facto guardian was debarred from dealing with the property of the minor-plaintiffs at any cost and that in such a situation, having due regard to the provisions of such an Act, the law which emanated from the Sastric Hindu law did not operate in such area. Mr. Prasad, the learned Advocate for Defendant No. 2 has argued to the contra. In the alternative, he has also contended that even assuming that Ex. A.2 may be invalid in the eye of law of the provisions of the Act which had come into force by then, the rights of Defendant No. 1 through whom Defendant No. 2 is claiming his right cannot be barred in view of Ex. B.4 which conferred a fair and equity right in his favour protected under Section 53A of the Transfer of Property Act.
13. Now the rival contentions as above can be dealt with the aid of the facts based on evidence produced before the Court and the correct law which can be operated upon them. Admittedly D.W. 4, the mother of the plaintiffs alienated the suit property which is their personal property under Ex. A.2 preceded by the agreement Ex. B.4. Although some expressions are made in Ex. B.4 and Ex. A.2 as to who alienated the property, the sum and substance of the contents clearly show that defendant No. 4 alienated the suit property on behalf of the minor-plaintiffs. No description of her status is given in such documents. Therefore, the law should decide about it. Admittedly such an alienation has taken place during the life time of Defendant No. 3, the father of the plaintiffs. Now we go to find out the legal status or the style in which such persons can be called in such a situation. The settled law both in India and elsewhere even apart from the Hindu Sastric Law is that the father is the natural guardian of the person and of the separate property of his minor children and next to him the mother. In the absence of the father, the mother is entitled to the custody of the person and of his separate property if any. (p. 624 and 625, Sections 518 and 519 of Mullal 5th Edn.). In other words, the status of a mother to be the natural guardian of the minor child is not totally taken away but she loses such a status during the life time of the father. But still the law authorises her to act for the minor children in particular situations subject to some statutory prohibitions. In order to know the total implication of the law of minority and guardianship not only in generality but also in regard to the persons like the plaintiff, who are governed by Hindu Sastric Law, some serious academic and real probe may be necessary.
14. Except in some statutory laws like Guardian and Wards Act, Indian Majority Act, Hindu Minority and Guardianship Act etc., the expression 'guardian' is not strictly defined. It is understood and applied depending upon a particular context and situation. The expression 'guardian' as a noun is a person appointed by law to act on behalf of someone (such as a child) who cannot act on his own. (Dictionary of Law by P.H. Collin P. 108 Left Col. 1993 Edn. Reprint 1994, Universal Book Stall New Delhi) 'Guardian' in the ordinary meaning of the language is the guardian of the child's person (Gulati; 1939 Lahore, 463). 'Guardian' is a person lawfully invested with the power and charged with the duty of taking care of the person and managing the property and rights of another person who for some peculiarity of the status of defect of age, understanding or self-control, is considered incapable of administrating his own affairs. (P. 834 LC Black's Law Dictionary Fourth Edn.1951). Therefore, in that sense or expression, both defendant Nos. 3 and 4 would fit into the definition of a 'guardian'. But one may supersede the other depending upon such situations, but as per the settled law, the former supersedes the latter. In other words, when the father is alive, mother cannot act as a guardian in the true sense of the term, particularly, in regard to the property and specially in regard to the personal property of the minor children.
15. Interestingly depending upon the manner and method in which guardians would act in a particular situation, they are classified and described in different forms. That itself may not lead to legal results always. Broadly speaking, the classification of 'guardian' appears to be 'de jure guardian' and 'de facto guardian'. In fact, no such expressions are actually defined anywhere. Depending upon such implications a 'guardian' is meant to be a person having the care of the person of a minor or of his property or both and includes (1) a natural guardian (2) a guardian appointed by the Will by the minor's father or mother; (3) a guardian appointed or declared by a Court and (4) a person empowered to act as such by or under any enactment relating to the Court of Wards (Section 4(b) Hindu Minorities and Guardianship Act). Now with such background and meaning of 'guardian', 'de jure guardian' and 'de facto guardian' have to understood. 'De jure' is a Latin phrase meaning 'by law'.; 'as a matter of law' etc. (P. 78 Dictionary of Law by P.H. Collin Supra). As an adjective 'de jure' means 'rightful', as an adverb 'rightfully' as an expression 'by right' (The Concise Oxford Dictionary P. 305 Right Col. 8th Edn.). A 'de jure guardian' or 'de facto guardian' are the composite expressions with prefixes, namely, 'de jure' and 'de facto'. A 'de jure guardian' is a guardian as a matter of law or as of right and, therefore, means a natural guardian or a guardian appointed by the Will, guardian appointed by the Court or declared by law or a person empowered to act under law. This should include both father and mother of the minor in order i.e., first father and then mother (Hindu Law). Similarly a 'de jure guardian' is one who has the care and the management of the person or the estate or the both of a child during minority (P. 1391 Right Column, Vol. 1, Bouvier's Law Dictionary Third Revision 1914). Such a guardian is also called as 'Guardian by Nature' who is the father and on his death the mother (P. 1392 Bouvier's Law Dictionary supra). A 'Guardian by nature' who is also called as 'natural guardian' and who is said to be the father and on his death the mother of a child which extends only to the person of the child sometimes called 'Natural Guardian' but this is a popular expression than a technical one (Black's Dictionary P. 834 LC 4th Edn.). Curiously enough where a guardian may not be strictly acting by the garb of law or not by strictly as of contextual factual situation, he would be styled as a guardian, namely, 'Guardian de son tort' sometimes described a 'quasi guardian' who assumes to act as a guardian without valid authority (P. 834 Right Column Black's Law Dictionary supra). In such a context Defendant No. 4 fits into the meaning of a 'natural guardian' or 'legal guardian' in the absence of Defendant No. 3 or otherwise, she should be fit into other expressions supra.
16. Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs has, with all efforts, tried to explain the real meaning and purpose of the expression 'de facto guardian' by referring to various texts like Mayne's Hindu Law, Mulla's Hindu Law and Raghavachariar's Hindu Law. With such guidance a 'natural guardian' can be styled as one who by virtue of his or her relationship to the child has a claim to be its guardian. Father's right to be the guardian of the person and property of the minor is paramount and comes first. (P. 168 Raghavachariar's Hindu Law 8th Edn.-1987). A 'de facto guardian' is one who is not a legal guardian in the sense that he is either a natural guardian or a testamentary guardian or a Court Guardian, but who, being interested in the minor, though a stranger, takes charge of the management of the minor's property. Such an expression in law is employed in contradistinction to de jure guardian. Both the expressions imply a relationship to the ward which is regular and continuous, and not casual or one which acts by fits and starts. What the de facto guardian lacks, as compared to a de jure guardian, is legal authority to act for the minor. He is factual guardian who acts in the regular course of over a period of time. A fugitive or an isolated act of a person with regard to the minor's property would not make him a de facto guardian of the minor nor would staying with a minor for a time make him a de facto guardian. In order to enable one to become a de facto guardian, there must be a continuous course of conduct as guardian of a minor in regard to his property; the length of the period so required to constitute on a de facto guardian would depend upon the circumstances of each case. A de facto guardian has to be distinguished from a guardian ad hoc who cannot claim the powers of a de facto guardian. (P. 167 Raghavachariar's Hindu Law supra).
17. Now the law relating to the guardian, legal guardian, de facto guardian and other types of guardian etc. etc. etc. can be summed up in brief. In law 'Guardian' means a legal guardian who can and who should take care of the person of the minor and manage the property of the minor unless he is disqualified in law or in fact when he may be replaced by intervention of the Court or by a statute and if any other person acts for the minor, he or she can never be recognised as a guardian in law except to bind the minor and his estate by rule of estoppel and rule of representation for the benefit of the minor or the estate by legal fiction and not by rule and which can be either ratified or repudiated by the minor after attaining the age of majority. Therefore, in law guardian is synonym to only legal guardian and to no other person. The expressions 'de jure guardian' and 'de facto guardian' etc. are all protectory quasi coverage for the benefit of the minor and his estate and legal transactions as public policy and not as a substitute to the real legal status and legal consequences. Therefore, in the absence or death of the father the natural guardian or when he conflicts the interest of the minor the mother or any other person can act for the interests of the minor and his estate to bind him and his interests within the regulation of law and not otherwise.
18. However in the development of law and the conduct of human beings certain prefixial expressions to 'Guardian' appear to have emerged and gained currency in the usage and precedents. De facto guardian appears to be one of such expressions. Justice Kania in Sriramulu v. Pundarikakshaiah, 1949 F.C. 218, thus was not totally wrong in saying that it is difficult to define such expression. But with all respects to him and others who believe in such a view it must be reminded that law is not static and in the developmental process provides more meanings to go into definitive diction. That appears to have happened to the definition of 'de facto guardian' also as detailed above.
19. That law is thus clear that a mother would be a natural or legal guardian only when the father is dead or not available or not heard of and if she acts as such during his life time may be either ad hoc or de facto guardian, it would depend upon the conduct as stated above. Now with the law settled as such regarding the meaning and the purpose of guardian etc. etc. including the de jure guardian and de facto guardian, we must examine whether the alienation of the suit property by Defendant No. 4 may be justified in law in order to bind the plaintiffs who were the minors at the relevant time.
20. Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs, is not prepared to even concede that Defendant No. 4 was the de facto guardian within the true meaning and expression in law as above because hers was only solitary instance of true transaction, namely, under Exs. A.2 and B.4 as the law in such a situation should conform to series of such transactions. Particularly, according to him, it is clear that it is not shown that Defendant No. 3 was not at all looking after the plaintiffs either regarding the person or the property and, in fact, from the evidence it is clear that he, in fact, was looking after them quite well. The evidence of plaintiff No. 1 examined as P.W. 1 supports such a position. It is also clear from the evidence that the family has got other properties which is said to be roughly 50 to 100 acres, it is not established that the whole family has gone to economic ruination so as not to protect or maintain the minors from out of the property. It is true that by a technical interpretation, D.W. 4 cannot be called as a de facto guardian in the light of the legal expressions made out. But in the very light of the legal expressions stated above, the mother is actually a natural guardian, but she loses such a status during the life time of the father, namely, her husband. But her status as de facto guardian cannot be taken away when she bona fide acts for the benefit of the minor. Even judging the facts and the circumstances of the case, Defendant No. 4 cannot be taken out of the definitive expression of 'de facto guardian'. She has acted more than once for the benefit of the minor plaintiffs. In fact, from the admitted position of the evidence, the plaintiff acquired the property, namely, the suit property only with the representation of defendant No. 4 under Ex. A.1. It was only with her assistance the suit property came to be alienated. D.W. No. 3 and his brother were the attestors to both Ex. A.2 and also Ex. D.4. Defendant No. 3 and his brothers are the attestors to both Ex. A. 2 and also Ex. B.4. The whole conduct of the important members in the family and also the natural guardian Defendant No. 3 in joining to such transactions gives Defendant No. 4 the recognition as de facto guardian. In the true and real meaning including the literary and legal expressions, defendant No. 4 both in law and on facts has acted as a de facto guardian to the plaintiffs in alienating the suit property under Ex. A.2 preceded by Ex. B.4. Therefore, this Court is not prepared to accept for a moment the suggestion that either Defendant No. 4 could be called as an ad hoc guardian or guardian de son tort or quasi-guardian or a guardian by estoppel. This Court is totally convinced both in law and on facts that Defendant No. 4 acted as a de facto guardian for the plaintiffs for the purpose of the transactions both under Ex. A.2 and Ex. B4.
21. Mr. Prasad, the learned Advocate for the contesting defendant is right in proposing the legal postulating which is settled and which is also not disputed by Mr. Suryanarayana Rao that the alienation of the property of the minor by a de facto guardian will be justified and supported and would be binding on the minors provided it is for legal necessity and for the benefit of the state and when it is not tainted by illegality or immorality. In this regard there is no difference between alienation by de jure guardian and de facto guardian wherein the principle in Hanuman Prasad's case, (1856) 6 MIA 393, is applied (P. 628 of Mulla's Hindu Law). Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs is also right in contending that the doctrine of pious obligation will not extend to personal or private property of the minor plaintiffs and it can only bind their interests in the coparcenary or joint family property as per the settled law and it does not create any personal liability on the sons (P. 266 and 267, Raghavachariar's Hindu Law and P. 384 of Mulla's Hindu Law Supra). This law is set at rest by Supreme Court in Siddeswar Mukherjee, 1954 SCR 177, Pannalal case, AIR 1952 SC 544, and S.M. Jakati and Anr. v. S.M. Borkar and Ors, : [1959]1SCR1384 . But it would be a question of fact in each case to find out whether such an alienation can be supported depending upon the facts and circumstances of the case.
22. Undoubtedly the burden of proving that an alienation of the property of a minor by a guardian whether de facto or de jure is for legal necessity and for he benefit of the estate ordinarily lies on the purchaser or the alienee. In other words, such a burden is heavily cast on the shoulders of Defendants 1 and 2. It is true that they have tried to discharge it by producing some evidence. As correctly recorded by the learned District Judge, the evidence reveals that the family of Hanumantha Rao, Defendant No. 3 and his brother, which was affluent at one time, had to incur heavy debts and dispose of the family properties. As already pointed out Acs. 179-39 guntas belonging to the joint family had to be alienated for a meagre sum of Rs. 12,000/-. Somehow the family was able to get back some property after which the suit property and the remaining part of it have been saved by leaving them to minor plaintifs. It is already pointed out that even at the relevant time, D.W. 3, his brother and father were not free from debts. It is demonstrated with more than sufficient evidence that they were borrowing monies from money-lenders and since they were not in a position to repay the same, they were selling the properties. Even after discharging the debts by selling the property Mr. Hanumantha Rao appears to have borrowed a loan which he was unable to discharge and suffered a decree in O.S. No. 148/1/139 F. for Rs. 1,500/-. The entry in Execution Petition Register under Ex. B.7 supports such an inference. If Hanumantha Rao could not discharge ultimately the debt of Rs. 1,500/- in spite of having sold the large property of the family, the financial stringency in the family can be visualised. That decree was passed by the District Munsif's Court, Bhainsa. Defendant No. 3 himself borrowed a sum of Rs. 400/- from one Abdul Wahid and since the loan was not repaid, the legal representatives of Abdul Wahid filed a suit O.S. No. 124/1/1953-54 on the file of the District Munsifs Court, Bhainsa and a decree was passed which is supported with a copy of the plaint Ex. B.3. In this connection the witness D.W. 4 Fakir Khan has been examined and as a whole, although strictly it his not established the extent of the debt which the family owed at the relevant time, it is proved with all reasonable probability that the family was incurring debts and had incurred debts by the time Ex. B.4 and Ex. A.2 were executed. Even the recitals in Ex. A.2 and Ex. B.4 suggest that there were some debts. However, Mr. Suryanarayana, the learned Counsel for the plaintiffs is right in pointing out that the theory of the existence of the debt and the discharge of it is quite conflicting. The evidence in this case is not consistent as different versions have been brought out in regard to the same which will be dealt with at the appropriate stage. Therefore, it may be that when the family had some debts at the relevant time, even the private and personal property of the plaintiffs was not spared when Exs. B.4 and A.2 were executed by Defendant No. 4. The plaint allegations by themselves show that Defendant No. 3 was a man of easy going and gay, perhaps, to mean that he was not serious about the consequences and took things very leisurely. Therefore, it is possible from the totality of the circumstances and as a probability that the suit property was also tried to be alienated through Defendant No. 4 when Defendant No. 3 did not dare to do it by himself under the peculiar circumstances which might be prevailing at the relevant time. But the only question is whether such an alienation can be supported in law.
23. The alienation under Ex. A.2 by way of legal necessity and benefit of the estate is sought to be supported on the ground that it was to discharge the debt, it was for the education of the plaintiffs and it was to maintain them. In this regard, excepting the proof of the existence of some debt at the relevant time, there is no clear proof that unless the suit property was to be alienated, the honour, prestige and the welfare of the minors and the other members of the family could not have been totally protected. As already pointed out, the family, which was joint family of Defendant No. 3, his brother and father, had some other properties apart from the suit property. As already pointed out, it is not as if that the entire joint family was subjected to improverishness so as to call them as persons incapable of maintaining themselves unless some family property or even the private property of the minors was disposed of to get some money only for such purpose. It is not explained as to why Defendant No. 3 himself did not alienate the suit property to bind the interests of the minors in the joint family which was very much available for the purpose of alienation if such legal necessity did exist at the relevant time. It is not explained or demonstrated by Defendant Nos. 1 and 2 as to why the suit property in particular was touched although it was left for minors' interest rightly or wrongly. Even regarding the maintenance expenses of the plaintiffs at the relevant time or of other members of the family, it is not proved with sufficient evidence or probable evidence to believe that the family did not have even the minimum finance to maintain the members of the family, to educate the minor-plaintiffs or to cultivate their lands. In this regard, the evidence of Defendant Nos. 1 and 2 is totally absent. The learned Advocate for the defendants has tried to draw inference from the totality of circumstances that the family had incurred so many debts and in the spree alienated the property due to total financial crisis as the expression used by the learned District Judge. This Court is unable to accept such an inference having due regard to the nature of evidence produced before the Court. The learned Advocate for the defendants has tried to draw such an inference from the recitals of the sale deeds. Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs has rightly repelled such contention by postulating the law that mere recitals in the documents about the legal necessity themselves may not be sufficient to prove the legal necessity nor the absence of recital would vitiate the alienation. (P. 241 of Hindu Law-Mulla Supra). This Court further tries to add that although such recital may be relevant, it would not be conclusive except it may be used as a corroborative material to support any other evidence if available on record. Therefore, in this case on facts it is difficult to support the alienation of the suit property by Defendant No. 4 by way of legal necessity or to the benefit of the estate. It is significant to note that the evidence is totally absent particularly regarding the benefit of the estate. Admittedly a portion of the same Survey No. is left out after selling the suit property under Ex. A.2. What benefit the minors have derived either personal or to the estate is not a matter which can be inferred from the evidence produced in the case. In conclusion, it must be recorded that the alienation of the suit property by Defendant No. 4 as a de facto guardian is not proved to be for legal necessity or for the benefit of the estate of the minor plaintiffs. In such a situation, the trite law appears to be that not only such an alienation is not binding on the minor plaintiffs but it is also void and void ab initio and conferred no title on the alienee (P. 637, Hindu Law, Mulla, Supra). Although the legal expressions in some situations say that such an alienation is voidable and may be ratified by the plaintiffs after attaining the majority, the developmental law leading to modification of the same by virtue of Section 11 of the Hindu Minority and Guardianship Act, has made the consequences as void and void ab initio. The statutory law regarding guardianship till Hindu Minority and Guardianship Act, 1956, came into force on 25.8.1956 appears to be only Guardian and Wards Act, 1890 and the Indian Majority Act. That was to be read along with the personal law like Hindu Law in order to know the legal consequences of such alienations. From and after 25.8.1956 by virtue of Hindu Minority and Guardianship Act with Section 2, the law under Guardian and Wards Act, 1890, has become a supplemental law. For all purposes they must be read together. But when there is a conflict between the two provisions, 1956 Act would prevail. (Mulla's Hindu Law 15th Edn. P. 1053 and Kusa Paride v. Baisab, : AIR1966Ori60 ). With such a legal position as is existing subsequent to 25.8.1956, Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs-appellants wants to take the aid of Section 11 of Hindu Minority and Guardianship Act of 1956 to put both Exs. B.4 and A.2 into void. According to him both the documents are to be read together to have the legal consequences, because, according to him, they cannot be separated for all purposes particularly having due regard to the facts and circumstances of this case. The learned Advocate has postulated that the whole transaction had been completed under Ex. B.4 and unless it was registered by virtue of Section 17 of the Registration Act and also Section 49 of the Act, there would not have been any sale transaction having the effect of Section 54 of the Transfer of Property Act, because a formality to obtain the permission of the prescribed authority, the suit property being the minors' property was to be complied with, Ex. B.4 could not be complete and when once that was done it fructified into Ex. A.2 and according to the learned Advocate as both logical and legal consequence when Ex. A.2 is merged with its part as Ex. B.4 both were put into void by virtue of Section 11 of the Act, 1956, and Ex. B.4 cannot survive for any legal purposes. Mr. Prasad, the learned Advocate for the contesting defendants has argued to the contra. According to him, the two transactions are independent and separate and the legal consequences were also independent and separate. Incidentally he points out that if there was no sale deed, by virtue of Section 54 of the Transfer of Property Act, the prospective purchaser was entitled to the benefit of Section 53A of the Transfer of Property Act. For this Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs adds that since Ex. A.2 came into existence, Ex. B.4 lost its existence and purpose, and secondly even asuming that Ex. B. 4 has a separate existence, the scope of Section 53A can be operated in a particular situation and not in this case and, therefore, the defendants are not entitled to the benefit of Section 53A of the Transfer of Property Act. However as a rule of caution, he has added that even then Defendant Nos. 1 and 2 cannot escape from proving the legal necessity and the benefit to the estate regarding the minor's suit property which is their personal property.
24. Now a correct examination of the rival contentions of the learned Advocates, this Court will examine the legal consequences. Beyond any pale of controversy or doubt, the Hindu Minority and Guardianship Act, 1956, which came into force on 25.8.1956 is not retrospective (P. 1070, Hindu Law Mulla Supra).
25. On facts and in law, Exs. A.2 and B.4 cannot be called as the same transaction. The two transactions have independent existence and independent legal consequences. It is not in all cases that both the documents will come into existence. Sometimes both will be there and sometimes only one of them will be there. Out of them, which has its real existence depends upon the circumstances of each case and the law to be operated Upon them. There cannot be any rule of merger in regard to an agreement of sale and a sale in the eye of law. An agreement of sale is governed by the provisions of the Indian Contract Act, 1872, and the sale transaction which is also a contract subject to the provisions of Contract Act is clearly governed by Section 54 of the Transfer of Property Act. A sale deed which is not registered for the purpose of getting a legal garb, by virtue of Section 54 of the Transfer of Property Act will still be open for operating under Section 53A of Transfer of Property Act as long as it is a contract enforceable in law. Although it cannot be enforced for the purpose of fructifying into a sale under Section 54 of the Transfer of Property Act, it would still be used for the purpose of Section 53A of the Transfer of Property Act. With such a distinction, it may be difficult to accept the contention of the learned Advocate for the plaintiffs. The nicety of the argument of the learned Advocate for the plaintiffs, although appears to be very attractive, may not convince this Court. For him but for Ex. A.2, Ex. B.4 has not existence. But, for this Court, it may be converse. In this case but for Ex. B.4, there could not have been Ex. A. 2. Ex. A.2 is a sequel of Ex. B.4. There was something before Ex. A.2 came into existence whatever be the rights which accrued to the allienee, namely defendant No. 1 under Ex. B.4. Perhaps the law could still be examined whether defendant No. 1 can be given such a benefit. A logical, hopothetical and syllogistic examination of the matter may resolve the problem. A document to be governed or operated under Section 53A of the Transfer of Property Act depends upon whether a sale deed has been registered or not to attract Section 54 of the Transfer of Property Act. The absence of the sale deed for the purpose of Section 54 of the Transfer of Property Act and the non-registration of a document or a sale deed for the purpose of Section 54 of the Transfer of Property Act finds no distinction. One is a case of total absence and another is a case of absence in the eye of law, because anything which is thrown into void has since not come into existence. Ex. A.2 becomes void in law for any reason as proposed by the learned Advocate for the plaintiffs, it would be as much as not in existence or void ab initio. Vacuum and absence are two synonyms to non-existence. In that situation, we are to examine whether Exs. A.2 and B.4 can be supported in law to create any right in defendant 1 or 2.
26. Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs is right in contending that by virtue of Section 11 of the Hindu Minority and Guardianship Act, Ex. A.2 would be void. Section 11 in unmistakable and clear terms supports his contention and it reads thus :
'After commencement of this Act, no person shall be entitled to dispose of, or deal with the property of a Hindu minor merely on the ground of his or her being the defacto guardian of the minor.'
Admittedly or by proved facts, defendant No. 4, who can be styled as a de facto guardian, has dealt with the suit property which is the personal property of the minor plaintiffs. Mr. Prasad, the learned Advocate for the contesting defendants, has tried to draw the distinction that since the transaction was over under Ex. B.4, there was no question of Ex. A.2 being hit by Section 11 of the Hindu Minority and Guardianship Act, 1956. The same reasoning given above in regard to the legal implications might answer this contention also. Since both the transactions are independent and distinct, the operation of the law should also be same. Ex. B.4 came into existence before the Act, 1956 came into force whereas it had already come into force by the time Ex. A. 2 came into existence. There cannot be any doubt that Ex. A.2 is totally governed by Section 11 of the Act, 1956. The clear expression 'After commencement of this Act' in the provision is an operating mandatory clause on the legal consequences of Ex. A.2. The contention of Mr. Prasad, the learned Advocate for the contesting defendants, that except the registration under Ex. A.2 nothing more has been done, as a matter of fact, to void Section 11 of the Act cannot convince this Court. In fact, it is the registration and it is not merely a regular sale deed that came into existence in the form of Ex. A.2 notwithstanding Ex. B.4. Therefore, as per the settled law in Baneyi Gurumurthy (AIR 1967 Orissa 63) and Nandini [1978 (1)APLJ 47) and by virtue of Section 11 of 1956 Act, Ex. A.2 would be void and nonest for all purposes. In other words, strictly speaking, plaintiffs were not compelled to seek either cancellation or to challenge such a document and would have had the benefit of acquiring possession of the suit property based on title as their title would not have been affected by virtue of Ex. A.2 which is held to be void and void ab initio.
27. Mr. Suryanarayana Rao, the learned Advocate for the plaintiffs with such an inference, having due regard to the fact of Section 11 of 1956 Act as above, points out that the legal consequence would stretch back to the date of Ex. B. 4. As already pointed out such a legal dating back cannot be operated. In the considered opinion of this Court, there is no doctrine of dating back or rule of merger in regard to the agreement of sale under Section 53A and the actual sale transaction under Section 54 of the Transfer of Property Act. Normally speaking with such an inference by throwing Ex. A.2 into void, the plaintiff's suit requires to be automatically decreed subject to other considerations. But we are still to examine whether the facts and circumstances of this case are governed by Section 53A of the Transfer of Property Act although with some distinction the matter was discussed in detail with the assistance of both the sides. This Court feels that this question is no longer res integra and appears to have been settled long back.
'A distinction has thus been drawn between a completed transfer of minor's property by the guardian, on grounds of legal necessity or benefit to the minor, and an executory contract of transfer entered into by the guardian on behalf of the infant for the same purpose, and specific performance has been held not to be available in the latter case because of want of mutuality. In Subramanyan v. Subba Rao (751. A. 115 APC 95), the Privy Council had to deal with a case where the mother of an infant as his natural guardian entered into a contract for the sale of the minor's property to a stranger. The contract was for the benefit of the minor and in pursuance of the agreement, the transferee was put in possession of the property. No sale deed was however executed, and the minor through his guardian instituted a suit for recovery of possession of the property contract to be sold on the ground that the contract was not binding on him. It was held by the Privy Council that the defendant was protected under Section 53A of the Transfer of Property Act (doctrine of part-performance), and the minor for whose benefit the contract was entered into answered most aptly the description of the transferor, in the sense in which the expression was used in the section.' (Page 631 of Mulla's Hindu Law supra)
28. In this case if the alienation under Ex. B.4 was for legal necessity or to the benefit of the estate of the minor-plaintiffs, the defendants 1 and 2 would have been really entitled to the benefit under Section 53A of the Transfer of Property Act and in that regard there cannot be any doubt. Mr. Suryanarayana Rao, the Advocate for the plaintiffs was totally right in consistently and convincingly canvassing this legal position which this Court accepts with all concern. In this case patently all the ingredients of Section 53A of the Transfer of Property Act have been fulfilled under Ex. B.4 and the facts and circumstances of this case. Under Ex. B.4 all the terms had been agreed upon, consideration was paid, conditions required were fulfilled and defendant No. 1 was actually put into possession which he is continuing till today. Therefore, he was really entitled to such benefit under the provisions of Section 53A of Transfer of Property Act subject to the conditions stated above, but it is not possible under the circumstances of this case. Although the learned District Judge has tried to deal with the matter in all its necessary approach, it is apparent that the serious circumstances in law and facts as detailed above are not considered by him and, therefore, he appears to have led himself to wrong findings and incorrect decision of the matter.
29. A stage has come to examine whether equity jurisdiction of this Court can be invoked to meet the ends of justice. When the operation of Section 53A of the Transfer of Property Act as a matter of law and fact has been accepted, the question remains whether defendant No. 1 or defendant No. 2 can be equitably remedied by operating the doctrine of Ubi jusibi idem remidium (when they have got a right some remedy his to be given to them). It should be the law. In this case the suit must be a collusive one. The evidence of plaintiff No. 1 is clearly demonstrative that the children and parents are very close to each other. Even now perhaps, Defendant Nos. 3 and 4 are only watching their difficult situations. However, because of their imprudent act, they could not bind the rights and interest of the minors in the suit property, but still they are answerable to the consequences both by express covenant and implied covenant. The transaction under Exs. A.2 and B.4 has failed because of the conduct of Defendant No. 4 regarding which Defendant No. 3 cannot be a silent spectator. It would be pertinent to note that in a litigation like this, having due regard to the conduct of the parties and the circumstances, the real architect must be a person like Defendant No. 3. If he had entered such a transaction, he was bound to bind his property with the consequences of such covenants. Unless some equitable remedy is afforded to Defendant Nos. 1 and 2, they will be driven to other litigations. As they have already spent long time, energy and money in this litigation only, the injustice would be measurable. At the same time, if we adopt such a course it may not prejudice the plaintiffs also as the suit property will not be bound by such a remedy. From the evidence it is clear that the Defendant No. 3 is left with some property in which Defendant No. 4 must be having some right of maintenance etc. including the rights under Section 14 of the Hindu Succession Act. Therefore, such rights should be subject to the liability by virtue of the remedy which may be granted in this litigation. This Court feels that the equities can be worked out if the amount of Rs. 5,000/- paid by Defendant No. 1 to Defendant No. 4 under Ex. B.4 or Ex. A.2 or both should be restored to him with some reasonable interest from a reasonable point of time which should be from the date of the suit. At the same time, if there is any property of Defendant Nos. 3 and 4 either personal or joint and any right in that, that should be bound by a charge for such liability to be enforced under a decree by Defendant Nos. 1 and 2. As a whole, the appellant-plaintiffs have succeeded in this appeal which should result in decreeing the suit as prayed for.
30. The appeal is allowed. The judgment and decree of the learned District Judge are set aside. The suit O.S. No. 35 of 1971 is decreed as prayed for with costs throughout.
31. There shall be a decree to the effect that defendants 1 and (sic. or) 2 or both together shall be entitled to recover Rs. 5,000/- from Defendant Nos. 3 and 4 with interest at the rate of 12% per annum from the date of the suit till the date of realisation regarding which there shall be charge on the personal properties or the joint family properties of Defendant Nos. 3 and 4. Defendant Nos. 3 and 4 shall pay costs of Defendant Nos. 1 or 2 incurred in this suit. The right of Defendants 1 or 2 or both to recover the amount under the decree shall be subject to their payment of the Court fee to the Court in accordance with law.