Sri Chandre Prabhuji Jain Temple &
Ors Vs. Harikrishna & ANR  INSC 146 (22 August 1973)
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
CITATION: 1973 AIR 2565 1974 SCR (1) 442 1973
SCC (2) 665
Guardians and Wards Act 1890-s. 29 read with
s. 31(2)-Widow, mortgaged property of minors with permission from Court without
disclosing existence of a will-Whether minors' estate liable.
One R. died in 1941, leaving behind him his
widow one minor son and .two minor daughters. Before he died, he had executed a
will whereby he appointed his widow the executor of the will and the guardian
of his minor son and daughters and bequeathed all his properties to the minor
son with directions as regards maintenance and marriage of his daughters. In
1948, the widow mortgaged certain properties to raise a loan of Rs. 7,000/- for
the purpose of marriage expenses of her elder daughter. She filed an
application to this effect under ss.7 and 10 of the Guardian and Wards Act
without disclosing anything about the will.
The Court passed an order appointing the
widow is the guardian of the personal property of the minor and son and
daughter and by another order, granted her Permission to raise the said loan.
Accordingly, she borrowed Rs. 7.000/- by mortgaging the houses. Thereafter, in
1950. she filed two applications seeking permission of the High Court to raise
a loan of Rs. 40,000/and Rs. 15.0001- on the security of the two houses. She
was allowed to raise Rs. 30.000/- and Rs. 10,000/- respectively by mortgaging
Thereafter. the widow filed another
application praying for permission to sell one of the houses in order to
discharge the amount due to the appellants under the two mortgages.
The permission was granted and the Indian
Bank Ltd. Purchased one of the house properties for Rs. 41,500/-.
Subsequently. the Bank came to know that R.
had executed a will find the Bank applied to the High Court to have the sale
set aside. This was done. When the existence of the will was brought to the notice
of the Court, the High Court directed the Administrator General to take
immediate possession of R.s estate and to apply for letters of administration.
The Administrator General obtained letters of administration and took
possession of the estate. In the course of administration, the A.G. after
obtaining the sanction of the Court, put up sale one of the houses in question.
The Indian Bank purchased it for Rs. 39,200/-.
The sale proceeds are being retained by the
A.G. The appellants thereafter, filed a suit before the High Court to recover
The money given under the two mortgages executed in favor of the appellants by
the widow as the guardian.
The respondent namely, the Administrator
General and the minor son contended that the widow had no authority to execute
the mortgages and that she obtained the sanctions of the Court to execute the
mortgages by practicing fraud etc.
The High Court held that since the appellants
were not parties to the fraud and as they are not required to go beyond the
orders, the appellants were entitled to recover the amounts from the properties
mortgaged and passed a preliminary decree.
Against this decree, the respondents appealed
to a Full Bench. The Full 'Bench held that an order under s. 31(ii) of the Guardians
and Wards Act, 1890 can be relied ton by an salience and is a substitute for an
honest enquiry to be made by him. The Court passed a decree for recovery of the
amounts from one half of the properties mortgaged. It is against this decree
that this appeal by certificate, has been preferred. In this Court, the
following points were raised by the appellants 443 (i) That the finding of the
High Court that the mortgages were valid only on respect of one half interest
in the properties was not correct. According. to the appellants, since the
widow was appointed guardian in respect of the person and the properties of her
minor son, and the fact that the widow stated in the application to appoint her
a guardian. that she was entitled to one half of the properties, and the minor
to the other half, would not- conclude the question that she was appointed
guardian only in respect of half share of the properties.
(ii) That under the Act or under the inherent
powers of the Court, a guardian can be appointed only with respect to all the
properties of the minor and not in respect of any specific item.
(iii) That if a guardian is appointed for all
the properties of a minor in one district, it is not necessary that there Should
be a fresh appointment for the properties of the minor in another district.
Dismissing the appeal,
HELD : (i) Since the widow had no power to
alienate the properties Linder the will, and since she did not disclose to the
court about the curb on her power, the sanctions obtained from the Court Linder
s. 31(2) of the Guardians and Wards Act 1890 on the application filed under s.
29 cannot be regarded as valid.
The question, therefore, is whether
appellants are entitled to get the money advanced, tinder the mortgages as a
charge of the entire interest in these properties. [451B] (ii) The High Court
granted the decree on the basis that the orders of sanctions for mortgaging the
properties were valid. If to avoid a decree for recovery of the mortgaged money
from the entire interest of the minor in these properties be refused on the
ground that the orders sanctioning the mortgages were invalid, it would be
contradictory to the of the finding of High Court on the basis of which it
passed the decree. Order 41, r. 33 of the C.P. clothes the appellants that the
power to pass any decree or order which the trial court ought to have passed
and to pass or make such further or other decree or order as the justice of the
case may require.
The respondents would be entitled to avoid
the orders of sanction in defence without the necessity of filing a suit.
provided they give restitution. The High
Courts have taken the view that as a condition for setting aside a disposal of
immovable property made in contravention of s. 28 or s. 29 which is voidable
under s. 30, it is just that there must be restitution of the benefits
received. [451E,G] Parshotam Das v. Nazir Hussan, 54 IC. 846, Peria Karuppam
Chetty v. Kandasamy Chetty (1933) Madras W.N. 791, and Abbas Hussain v. Kiran
Sashi Devi, A.I.R. 1942 Nagpur 12, referred to.
(iii) In the present appeal, one item of the
properties has been sold by the A.G. through the sanction of the Court and the
proceeds of the sale are with him. Therefore a decree is passed against the
respondent/defendants directing them to pay the appellants the principal
amounts due under the two mortgages 'together with 6% interest from June 1,
1950, on the principal amount upto the date of payment or realisation. The
amount decreed will be a charge on the sale proceeds of one of the properties
which are being retained by the A.G. and the entire interest in the other Property
under the mortgage. [452E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1701 of 1967.
Appeal from the judgment and order dated
December 1, 1961 of the Madras High Court in O.S.A. No. 17 of 1957.
444 V. M. Tarkunde, Harbans Singh and H. S.
Dher, for the appellant.
M. Natesan and S. Gopalakrishnan, for
respondent No, 1.
The Judgment of the Court was delivered by
MATHEW, J.--One Gopalakrishna Raju (hereinafter called Raju died in Madras on
or about November 13, 1941, leaving behind him his window Manorama, one minor
son and two minor daughters. On March 25, 1941, Raju had executed a will
whereby he appointed Manorama the executor of the will and the guardian of
his-minor son and daughters and bequeather a.1 his properties to the minor son
with directions as regards the maintenance and marriage of his daughters. On
June 7, 1948, Manorama mortgaged certain properties to raise a loan of Rs.
7,000/- for the purpose of meeting the marriage expenses of her elder daughter.
Thereafter, she filed an application under sections 7 and 10 of the Guardians
and Wards Act. 1890, hereinafter called the Act ' on August 26, 1948, before
the High Court of Madras to appoint her as the guardian of her minor children.
In that petition she did not disclose that Raju died after executing a will,
but said that Raju died leaving two houses Nos. 18 and 18A in Egmore, Madras
and that she was the owner of one half of the houses and that her minor son was
the owner of the other half. She also said that no guardian had been appointed
of the person or the property of the minors.
Along with the petition for appointing her as
guardian, she also filed an application seeking permission of the court to
raise a loan of Rs. 7,000/,by mortgaging the two houses. On September 9, 1948,
the Court passed an order appointing Manorma as the guardian of the person and
property of the minor son and daughter and, by another order, granted her
permission to raise a loan of Rs. 7,000/- by mortgaging the two houses. On the
basis of these orders, she borrowed a sum of Rs. 7,000/- on September 24, 1948,
by mortgaging the two houses. Thereafter, she filed another application on
January 19, 1950, seeking permission of the High Court to raise a loan of
Rs,40,000/- on the security of the two houses. On January 23, 1.950, the
application was allowed under s. 29 of the Act permitting her to raise a loan
of Rs.30,000/- on the security of the two houses belonging to the minor. On the
strength of this order, Manorama borrowed on March 4, 1950, a sum of Rs.
30,000/- from the trustees of Shri Chandre Prabhuji Jain Temple, the appellants
before this Court, by executing a mortgage of the two houses. She again applied
on April 24, 1950, to the Court for raising a further loan of Rs. 15,000/- on
the security of these two houses but sanction was accorded to raise a loan of
only Rs.1.0.000/On the basis of this order she borrowed a further sum of Rs.
1,000/from the appellants by executing a mortgage on May 31, 1950, of the same
properties. Manorama filed yet another application praying for permission to
sell one of the houses with a view to enable her to discharge the amount due to
the appellants under the two mortgages. The permission was granted and the
Indian Bank Limited purchased one of the house properties for a sum of Rs.
41.500/- It would appear that subsequent to the execution of the sale, the bank
came to know that Raju had executed a will. So the bank applied to the High
Court to 445 have the sale set aside. This was done. When the existence of the
will, executed by Raju was brought to the notice of the Court, Krishnaswami
Nayudu, J. directed the Administrator-General to take immediate possession of
the estate of Raju and to apply for Letters of Administration.
The Administrator-General obtained Letters of
Administration and took possession of the estate. In the course of the,
administration, the Administrator-General, after obtaining the sanction of the
Court put up for sale one of the houses in question. The Indian Bank purchased
it for, Rs.
39,200/-. The sale proceeds are being
retained by the Administrator-General.
The appellants filed the suit on the original
side of the High Court out of which this appeal arises, to recover the money
due under the two mortgages executed in favour of the appellants by Manorama as
The respondents, namely, the
Administrator-General and the minor son, contended that Manorama had no
authority to execute the mortgages and that she obtained the sanctions to
execute the mortgages by practising fraud upon the court.
They also contended that the appellants had
not acted with due care, that the sanctions to mortgage given by the court were
only prima facie evidence that the transactions were beneficial to the minors
but that they would not cure any inherent defect that existed in the
transactions, that the enquiry conducted by a court in granting sanction was of
a summary character, and that as the existence of the will has not been brought
to the notice of the court, the sanctions to raise the loans were invalid and
did not bind the minor.
Balakrishna Ayyar, J. who tried the suit held
that Manorama deliberately suppressed the execution of the will by Raju and
therefore, the orders authorizing her to raise the amounts by mortgaging the
properties of the 2nd respondent were obtained by fraud. The learned Judge,
however, held that since the orders were only voidable and as .the appellants
were not parties to the fraud and as they were not required to go behind the
orders, the appellants were entitled to recover the amount from the properties
mortgaged and passed a preliminary decree.
Against this decree the respondents appealed
and the appeal was referred to a Full Bench as there was conflict of opinion on
the question whether an order under s. 31(2) of the Act granting leave to a
guardian for alienating the property of the ward was conclusive proof that the
alienation made in pursuance thereof was supported by necessity or benefit of
The Full Bench held that an order under s.
31(2) of the Act can be relied on by an alienee as a substitute for an honest
enquiry to be made by him; but that it will be open to the minor challenging
the alienation to show that the alienee was nut on notice at the time of the
alienation of matters which would show the defects in the transaction or that
the alienee did not act bona fide- It also held that where there is no evidence
to show that there existed circumstances exciting suspicion as to the way in
which an order under s. 31(2) was obtained, 446 the alienee would be entitled
to rely on it to support his title, but that an order under S. 31 C2) cannot be
treated always as conclusive as to, the existence of necessity or benefit and
that even as to the sufficiency of the- enquiry to be made by the alienee, it
would be competent for the minor to prove that the alienee did have sufficient
reason not to rest on the mere order of the court. The court said further that
if the minor proves that the alienee knew more or did not himself rely on the
order but made independent enquiries-the onus being on the minor to prove
it-the order of the court will not afford conclusive evidence on the question
of enquiry. However, if the alienee is not a party to any fraud and has no
knowledge of any fraud the mere fact that the guardian was guilty thereof will
not disentitle him to rely on the order of the court as proving an honest
enquiry by him. The court further that the orders of sanction were valid even
though they were made under s. 31(2) of the Act notwithstanding the fact that
Manorama was appointed guardian under the will of her husband. The further
finding of the court was that the mortgages could be enforced only against one
half of the mortgaged properties as Manorama was appointed guardian only in respect
of that half. The court was of the-view. that the sanctions to execute the
mortgages in respect of the two properties were only in respect of one-half
share therein. The Court therefore, passed a decree for recovery of the amounts
from one-half of the properties mortgaged.
It is against this decree that this appeal by
certificate- has been preferred.
The most important point canvassed on behalf
of the appellants was that the finding of the High Court that the mortgages
were valid only in respect of one half interest in the properties was not
correct. Counsel for the appellants submitted that Manorama was appointed
pardon in respect of the person and the properties of her minor son and the
fact the Manorama stated in the application to appoint her guardian that she
was entitled to one-half of the properties and the minor to the other half,
would not conclude the question that she was appointed guardian only in respect
of the half share in the, properties. Counsel further submitted that under the
Act or under the inherent powers of the Court, a guardian can be appointed only
of an the pro- perties of a minor and not in respect of any specific items and
that if a guardian is appointed of the properties of a minor in one district,
it is not necessary that there should be a fresh appointment for the properties
of the minor in another district as under S. 16 of the Act, a certificate from
the court appointing the guardian would be conclusive evidence in the other
district that he was appointed guardian of the properties in that district
In the application to appoint her as
guardian, Manorama stated that only the two houses were inherited by her and
the minor son from her husband and that she was entitled to a half share in
them with limited rights and that her minor son was entitled to the other half
In the affidavit accompanying that petition she said that she has inherited
half of the estate of her husband of the value of Rs.
37,500/-. The order appointing her as
guardian stated that she is declared guardian 447 of the person and properties
of the minor and that as guardian she shall not, without previous permission of
the court, mortgage, charge or transfer by sale, gift, exchange or otherwise
any part of the immovable property of the minor or lease the same.
In the application made by her for permission
to execute the mortgage for Rs. 30,000/- as guardian, she has stated that she
required the loan to discharge the debts and the demands then existing against
the properties belonging to her and her minor son as heirs of her late husband.
The order of the court on that application dated February 1950, giving her
leave stated that "the applicant do have permission to raise. a loan of
Rs. 30,000/- on the security of the two houses No. 18 and 18A". In the
reasons given for that order, the court said that "the guardian is
permitted to raise a loan of Rs. 30,000,/- on the security of two items of
property belonging the minor viz., Nos. 18 and 18A in Sait Colony, First
Street, Egmore, Madras". In the mortgage executed in pursuance to this
order of sanction, Manorama described' herself as executing the mortgage for
herself, and as mother and guardian as per the order of the High Court in O.P.
No. 269 of 1948, namely, the original petition for appointing her as guardian.
The court appointed Manorama as guardian of
the properties of the minor. The order does not show that she was appointed
guardian in respect of the one half interest in the properties. A person
looking into the order could not have found any limitation in it. A purchaser
of the properties of minor could not be expected to go behind the order.
The court had no occasion to inquire nor did
it make any enquiry as regards the extent of the interest of the minor in the
properties. That apart, the orders sanctioning the mortgages in fact authorized
Manorama as guardian to mortgage the properties, even though in the application
on the basis of which the order sanctioning the mortgage for Rs. 30,000/- was
passed, Manorama said that she was entitled to one half interest in the
properties and that the minor to the other half (see para 1 of her application
dated January 19, 1950 for sanctioning the mortgage for Rs. 30,000/-) We think
that the orders sanctioning the mortgages authorized her to mortgage the
properties and not any particular interest therein. If her capacity to alienate
the properties of the minor is to be judged from the orders of sanction, its
extent must be measured by these orders read in the light of the order
appointing her guardian.
Section 28 of the Act provides "Where a
guardian has been appointed by will or other instrument, his power to mortgage
or charge, or transfer by sale, gift, exchange or otherwise, immovable property
belonging to his ward is subjected to any restriction which may be imposed by
the instrument, unless he has under this Act been declared guardian and the
court which made the declaration permits him by an order in writing,
notwithstanding the restriction, to dispose of any immovable property specified
in the order in a manner permitted by the order." 448 Manorama did not
make any application under this section.
Nor was the court appraised of the will or
the restrictions which it imposed on her power of alienation. The court,
therefore, had no occasion to pass an order in writing as visualised in the
section enabling her to dispose of any property of the minor notwithstanding
the restriction imposed by the will.
Section 29 says that where a person other
than a Collector or than a guardian appointed by will or other instrument, has
been appointed or declared by the court to be guardian of the property of a
ward, he shall not, with the previous permission of the court (a) mortgage of
charge or transfer by sale, gift, exchange or otherwise any part of the immov-
able property of his ward, or (b) lease any part of that property for a term
exceeding five years or for any term extending more than one year beyond the
date on which the ward will cease to be a minor. As Manorama was declared by
the will to be the executor and also guardian of the minor, she could not have
made an application for permission to mortgage under s. 29. Nor could the court
have passed any order granting permission under s. 31(2) to mortgage the
immovable property of the minor. The order sanctioning the mortgage for Rs.
30,000/- was 'expressly passed on an application made under s. 29. Though there
is, no mention in the order sanctioning the mortgage for Rs. 10,000/- of the
section under which it was passed the order appears to have been made under s.
31(2). But as already-stated, the orders could not have been passed under s.
31(2) on the basis of the applications filed under s. 29 as Manorama was a
guardian appointed by the will of Raju.
Mr. Tarkunde for the appellants argued that
s. 3 of the Act preserves the inherent powers of certain High Courts to appoint
a guardian and determine his powers and to sanction any alienation by the
guardian of the properties of the ward, apart from the provisions of the Act.
He cited In re Mahadev Krishna Rupji(1) and The Raja of Vizianagaram v. The
Secretary of State for India in Council(2) and said that the High Court of
Madras had inherent jurisdiction to appoint a guardian and determine his powers
untrammeled by the pro.
visions of the Act. In the first of the cases
above referred to, it was held by the Bombay High Court that though the Act
does not sanction (,he Appointment of a guardian in respect of undivided share
of a minor in a joint Hindu Family, the High Court of Bombay had inherent power
to appoint a guardian. In the latter case, the Madras High Court hold that the
High Court has, under clause 17 of the Letters Patent, 1865, jurisdiction in
regard to minors, though not of British birth, resident outside the limits of
the Presidency town and its jurisdiction to act under that clause is not
affected by the Act. The court also said "the jurisdiction of the High
Court under clause 17 of the Letters Patent is not in the exercise of its
ordinary original civil jurisdiction and it is saved by s. 3 of the Guardsman
and Wards Act which says that 'nothing (1) T. L. R. 1937 Bom. 432.
(2) T. L. R. 1937 Mad. 383.
449 in the Act shall be construed to take
away any power possessed by any High Court established under the Statute 24 and
25 Vic.c.104 It does not follow from these rulings that the principle
underlying S. 28 of the Act should not bind the High Court even while
exercising its inherent powers.
The principle underlying s. 28 is that when a
guardian is appointed under a will and Ins powers are expressly restricted by
that instrument, the court must be apprised of the will and of the restrictions
on his powers imposed by the testator in order to exercise its discretion to
determine whether those restrictions should be removed or not. The section
enacts a salutary principle for the exercise of its parental jurisdiction.
Mr. Tarkunde said that s. 28 is applicable
only to a guardian of the property of the minor, that the will of Raju declared
Manorama only as guardian of the person of the minor and therefore, s. 28 was
The definition of the word 'guardian' in s. 4
(2) of the Act says that 'guardian' means a person having the care of the
person of a minor or his property, or of both his person and property. In the
matter of Sirsh Chander Singh and Others(3) the court said that the question
whether a person is appointed guardian of the person of the minor alone but of
his property also must be determined on a perusal of the entire document
appointing him. if powers of managing the properties of the minor are vested in
a guardian and express restrictions are placed on his powers of alienation in
the course of the management, that is an indication that the appointment is as
guardian of the property also. Manorama was given power under the will to
manage the properties of the minor. The fact that restrictions have been
imposed by the will on her powers of alienation of the properties of the minor
seem,; to us a rather sure indication that Manorama was appointed guardian of
the properties of the minor also. To what purpose were the restrictions imposed
unless she was also appointed guardian of the properties ? Section 28 no doubt
comes under the heading "Guardian of property". But we are not sure
that from that fact we can infer that s. 28 contemplates only the case of a guardian
of the property of the minor. However, we express no opinion on the question as
that is unnecessary. We proceed on the assumption that the section only applies
to a guardian of the property of a minor.
That apart, as the learned trial Judge
rightly held, the orders of sanction were obtained by fraud and they were,
therefore, on that account bad.
Mr. Tarkunde said that the respondents cannot
raise the objection in this appeal that the orders of sanction were invalid as
the respondents did not appeal from the decree of the High Court to recover the
mortgage money from the one- half share in properties. His argument was since
the respondents did not Me an appeal against that decree, they cannot be
allowed to impugn the validity of the orders of sanction. on the basis. of
which that decree was passed, and, if the orders of (1) 21  I. L. R.
Calcutta 206, 21 1.
450 sanction are allowed to be impugned here,
that would be allowing the respondents to imperil the decree ill respect of the
half-share in the properties.
It is no doubt true that respondents cannot
be allowed to impugn the decree passed by the High Court in favour of the
appellants as they did not file any appeal from that decree.
But we think that there is no reason why they
should not be allowed to' urge the plea that the order, of sanction wire
invalid when the appellants want not only to maintain the decree passed by the
High Court but also to yet a decree charging the entire Properties. :In other
words, the bar against urging the plea of the invalidity of the orders of
sanction would apply only if the respondents seek to impugn the decree already
obtained by the appellants but not when the appellant seek to obtain further
reliefs in the appeal on the basis of the orders. In such a case we are not aware
of any rule of law which would preclude the respondents from urging the plea.
In The Management of Itakhoolic Tea Estate v.
its workmen,(1) the question whether in such circumstances, a respondent who
has not appealed from the decree can be allowed to urge such a plea in answer
to a claim ,by an appellant for a further decree although the plea might
imperil the decree already obtained was left undecided. But the Full Bench
decision of the Madras High Court in Venkata Rao v. Satyanarayanamurthy (2 )
has held that 'it is open to a respondent who' had not filed cross-objection
with respect to the portion of the decree' which had gone against him "to
urge in opposition to the appeal of the plaintiff, a contention which if
accepted by the trial court would have necessitated the total dismissal of the
suit" but that the decree in so for as it was against him would stand. The
decree of the High Court here in so far as it held that the mortgage money can
be recovered only from the half share in the properties was also a decree in
favour of the res- pondents as it did not allow the claim of the appellants to
recover it from the entire interest in the properties. To that extent, the
respondents had a decree in their favour.
That decree they could support on any of the grounds
decided against them by the court which passed the decree. And when they do
this, they are only supporting and not attacking that decree. We think that the
rule laid down by the Madras High Court in the above decision is sound. And
there is no reason why the respondents should be barred from urging the plea.
So even though we hold that the power of Manorama as guardian to mortgage the
properties extended to the entire interest in tie properties, it would not
follow that the appellants would be entitled to a decree charging the entire
interest in the properties as the orders of sanction on the basis of which
alone Manorama got the power to alienate the properties were invalid.
The position that emerges from this
discussion is : Under the will Manorama had no power to alienate the
As the existence of the will and the curb on
her powers of alienation were not disclosed (1) A. I. R.  S. C. 1349. (2)
I. L. R.  Mad.
451 to the court when she applied for
sanction and as the court did not by order in writing remove, the fetters on
her power of alienation, the sanctions cannot be regarded as having been
obtained under s. 28; nor could the sanctions, as they were given under S.
31(2) on the applications filed under s.
29, be regarded as valid, as Is. 29 has no
application when there is a will appointing a person as guardian.
The question then is whether the appellants
are entitled to get the money advanced under the, mortgages as a charge on the
entire interest in these properties.
The appellants advanced the amounts bona fide
believing that. there was necessity on the strength of the orders of sanction
and there is no finding that there was no necessity. These orders were not
void, even though they were obtained by fraud. That was the view of Balakrishna
Ayyar, J. and it was on the basis that the orders ware voidable, and that,
until set aside, they were valid, that the learned Judge granted a decree. A
disposal of property in contravention of the provisions of s. 28 or s. 29 is
only voidable (see s. 30). We think that there is no reason why, when in
defence to the claim by the appellants for a decree charging the entire
interest in the properties, in the appeal, the respondents should not be
allowed to show that the orders of sanction were invalid notwithstanding the
fact that they were not set aside in a suit instituted by the 2nd respondent.
If the court were to refuse to pass a decree allowing the appellants to recover
the money on the rest of the minor's interest in the properties, the basis of
that refusal would be on a ground destructive of the decree passed by the High
Court. In other words, the High Court granted the decree on the basis that the
orders of sanction for mortgaging the properties were valid. If we are to
refuse to pass a decree for recovery of the mortgage money from the entire
interest of the minor in these properties, on the, ground that the orders
sanctioning the mortgages were invalid, that would be contradictory to the
finding of the High Court on the basis of which it passed the decree.
Order 41, rule 33 of the Civil Procedure Code
clothes the appellate court with the power to pass any decree or order which
the trial court ought to have passed or made and to pass or make such further
or other decree or order as the justice of the case may require.
Though the respondents are entitled to avoid
the orders of sanction in defence without the necessity of filling a suit, it
is just and proper that as a condition for doing no, they must give
restitution-. The High Courts in this country have taken the view, and we think
rightly, that as condition for setting aside a disposal of immovable property-
made in contravention. of s. 28 or s. 29 which is voidable under s. 30, it is
just that there must be restitution of the benefits received [See Parshotam Das
V. Nazir Husain(1), Peria Karuppan Chetty v. Kandasamy Chetty(2), Abbas Husain
v. Kiran Shashi Devi(3).] (1) 54 I. C. 846. (2) 1933 Mad. W. N. 791.
(3) A. T. R. 1942 Nag. 12.
452 In this view, we do not think it
necessary to express any opinion on the correctness or otherwise of the view of
the High Court on the. nature and effect of an order passed under S. 31 (2).
Suffice it to say that different views have been expressed by the High
As already stated, one item of the properties
has been ,old by the Administrator-General with the sanction of the Court and
the proceeds of the sale are with him. We pass a decree against the
respondent-defendants directing them to pay the appellants the principal amount
due under the two mortgages together with 6 per cent interest from June 1, 1950
on the principal amount up to the date of payment or realization.
The amount decreed will be a charge on the
sale proceeds of one of the properties which are being retained by the
Administrator-General and, on the entire interest in the other property under
The decree of the High Court is set aside and
a decree in terms as aforesaid is passed. The appeal is allowed in the manner
and to" the extent indicated above. The parties will bear their costs