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TMI Blog1973 (8) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ₹ 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 ₹ 7,000/- by mortgaging the two houses. On the basis of these orders, she borrowed a sum of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sactions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 also. In the application to appoint her as guardian, Manorama stated that only the two hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for ₹ 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 ₹ 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. Manorama did not make any application under this sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inor 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1894] I. L. R. Calcutta 206, 21 1. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notwith ..... 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