John Beaumont, Kt. , C. J. -
(1.) THIS is a second appeal from a decision of the District Judge of East Khandesh and it was referred to a full bench because it raises a question on which there is a conflict of authority. The appeal relates to the validity of a sale of immoveable property by the guardian of a minor. It is agreed that such a sale may be made for necessity or the benefit of the estate, and the question is what is meant by the expression " benefit of the estate ". ' The rival views are expressed very clearly in Sir Dinshah Mulla's book on Hindu Law in paragraph 243a in which he refers to the conflict of authority and says : One view is that a transaction cannot be said to be for the benefit of the estate, unless it is of a defensive character calculated to protect the estate from some threatened danger or destruction. Another view is that for a transaction to be for the benefit of the estate it is sufficient if it is such as a prudent owner, or rather a trustee, would have carried out with the knowledge that was available to him at the time of the transaction.
(2.) THE facts are not in dispute. In the year 1914 a piece of land was sold by the mother and guardian of the present plaintiff, who was then a minor, to the defendant, and the plaintiff, shortly after he had attained the age of twenty-one years, filed this suit to set the sale aside. THE facts found by the lower appellate Court, by which we are bound in second appeal, are that the land sold was a small strip of land which was normally worth not more than Rs. 600, and the price paid for it by the purchaser was Rs. 900. THE reason why the purchaser was willing to give more than the normal value was that the piece of land lay between two pieces of land belonging to the purchaser, and he desired to unite the whole property and build upon it. THE purchase money of Rs. 900 was invested by the mother in a business-apparently a money-lending business-which had been carried on "by the minor's father, and was at the date of the sale being carried on by his mother. THEre is no evidence as to the nature of the business. THE trial Court was of opinion that the transaction was not for the benefit of the minor's estate and that the plaintiff's suit should succeed. In appeal the District Judge was of opinion that the transaction was for the benefit of the minor, and he allowed the appeal.
The question what is meant by the term " for the benefit of the estate " must, I think, be answered by reference to the authorities. The leading case on the subject, which is always cited when the question arises, is Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 M. I. A. 393, and the relevant passage is at page 423. That passage is in these terms : The power of the Manager for an infant heir to charge an estate not his own, is, under the Hindoo law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. That passage no doubt suggests that the term " benefit of the estate " covers all acts which a prudent owner would do in connection with his own estate, and therefore supports the second view referred to in the passage quoted from Sir Dinshah Mulla's book on Hindu Law.
The question was next considered by the Privy Council in Palaniappa Chettiar v. Sreemulh Devasikamoney (1917) 19 Bom. L. R. 567, P. C. . That was a case of a grant of a permanent lease by a shebait of debottar lands, but it is, I think, clear that the Privy Council treated the powers of such a shebait as being on the same footing as the powers of a manager of a minor's estate. The relevant passages in that case appear on pages 576 and 577. After referring to the passage in Hunooman-persaud's case, which I have just read, their Lordships say : No indication is to be found in any of them as to what is, in this connection, the precise nature of the things to be included under the description ' Benefit to the Estate'. It is impossible, their Lordships think, to give a precise definition of it applicable to all cases, and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits. The difficulty is to draw the line as to what are, in this connection, to be taken as benefits and what not. And then on p. 577 they say : . . . no authority has been cited giving any countenance to the notion that a Shebait is entitled to sell debottar lands solely for the purpose of so investing the price of it as to bring in an income larger than that derived from the probably safer and certainly more stable property, "the debottar land itself.
(3.) TWO observations upon the first of those passages suggest themselves. First, that, although all the illustrations of what would be for the benefit of the estate are illustrations of acts of a protective character, nevertheless the Privy Council did not in terms say that the expression " benefit to the estate " was to be confined to acts of that nature, and the illustrations do not purport to be exhaustive. Secondly, that, if the Privy Council considered that any transaction which was advantageous to the estate came within the description of " benefit to the estate ", then the passage which I have just read would seem to be unnecessary, because no question of principle, nor difficulty of definition, would be involved. The only question would be one of fact, whether the particular transaction was or was not advantageous to the estate. That question might sometimes be difficult to determine, but would not involve any difficulty of definition. So that, I think, the Privy Council must have been of the opinion that the words " benefit to the estate " were not intended to include every transaction which was advantageous or which a prudent owner would carry out in connection with his own estate, and this view is confirmed by the second passage quoted. It is those passages which have given rise to the contention which has found favour in a good many cases that the benefit must be of a protective character, and the tendency of decisions of this Court has undoubtedly been in favour of that view.
There are three cases of that character to which I would refer. First, there is a case reported in Ganap v. Subbi (1908) I. L. R. 32 Bom. 577 : : S. C. 10 Bom. L. R. 927, which was a case of a sale by a Hindu widow, and it was there held that the " necessity " to justify such a sale involved some notion of pressure from without and not merely a desire to better or to develop the estate. That case however is not, I think, an authority on the question which we have to decide, because it has not been established before us that the powers of a Hindu widow are necessarily co-extensive with the powers of a manager of a minor.;