UDAI PAL SINGH Vs. PYARE

JUDGEMENT

(1.) This is a second appeal on behalf of a minor through his certified guardian against a preliminary decree of the lower Appellate Court in a suit for sale on a mortgage. The trial Court had dismissed the suit. The facts are that the mother of the minor, Mt. Maharaj Kunwar, was formerly his certified guardian and on 13th January 1922 she made an application to the District Judge asking under Section 29, Guardians and Wards Act permission to execute a mortgage of the property of the minor for a sum of Rs. 550, for three items : (1) "gaona" ceremony of the sister of the minor; (2) for necessary expenses; (3) the upkeep of the minor, and stating that she had arranged with the plaintiff, Bhola, to lend the money at Rs. 1.12.0 percent. per mensem and that some land would be leased to the mortgagee from the month of Jeth following to pay the interest on the loan and therefore the arrangement would be for the benefit of the minor. On 16 January 1922 the District Judge passed a brief order : "Sanctioned as prayed". This order was no doubt defective as it should have specified the details under Section 31(2). But that is not the main point. Now the circumstances changed and the guardian did not require the money for the "gaona" which was not to be held. Accordingly on 13 June 1922 the guardian executed a mortgage deed for Rs. 350, not Rs. 550, for the other items of necessary expenses and costs of the upkeep of the minor and the lease of the land in lieu of interest was not made. Shortly after this the guardian. Mt. Maharaj Kunwar, eloped with some man and the present guardian, the step-mother of the minor, was appointed by the Court.

(2.) The question is whether the provisions of Section 29, Guardians and Wards Act have been complied with, and whether permission was obtained from the Court for the mortgage deed in suit. I am of opinion that when the District Judge gave his permission on the application of 13 January 1922 he had in view the fact that money for the gaona for the sister of the minor is a legal necessity under the Hindu law for which the estate of the minor is liable. The application did not specify that a certain portion only of the money required was due for the gaona and the District Judge may well have thought that as it was put first the greater portion of the money was required for that purpose. Moreover the District Judge must have been induced to grant permission on the view that no interest was to accumulate as the fields were going to be let in lieu of interest. The actual mortgage deed involves neither of these conditions.

(3.) I am of opinion that under the changed circumstances it was necessary for a new permission from the District Judge to be obtained and that for the mortgage deed in question it cannot be said that there was any permission of the District Judge. The circumstances were so entirely different and the transaction was so entirely different that the former permission did not cover the transaction. The language of Section 29, Guardians and Wards Act is imperative and it is stated that the guardian "shall not without the previous permission of the Court execute a mortgage." The permission being imperative under the section, the absence of permission renders the mortgage voidable and the minor can plead in the present suit that it should be treated as void. I consider therefore that the Court below was incorrect in treating this mortgage as valid and passing a decree on it. I allow this second appeal with costs throughout and I dismiss the suit of the plaintiff with costs throughout. The cross-objection is not pressed and it is dismissed with costs. No point has been shown for permission for a Letters Patent appeal; permission is therefore refused.