Hunoomanpersaud Panday vs Mussumat Babooee Munraj Koonweree (1854-1857 ) 6

Moore's I.A. 393

Case is a guide to all those who had limited powers of disposal over any property. The power
of the guardian/manager/karta for an infant heir to charge an estate, which is not his own, is a
ltd & qualified power. Burden of proof is on the alienee/transferee/lender to show that he
acted bona fide & that there was necessity.

Facts: A certain mortgage executed by a widow in her character of the guardian of her infant
son was challenged by the son on becoming major on the ground that it is inalienable by the
act of the guardian, and so he is not liable for it and the said mortgage was made for the
payment of arrears of revenue due to the government, thus it was for the benefit of the minors
estate to prevent a sequestration & probable confiscation due to non-payment of government
revenue.

PC observed & decided :- 5 propositions

(i) The power of the guardian/manager for an infant heir(or the power of karta) to
charge an estate which is not his own, is under the Hindu law, a ltd & qualified
power, it can only be exercised rightly in the case of legal necessity or for the
benefit of estate
(ii) In case a guardian/manager makes alienation as a prudent man, in order to benefit
the estate, the bona fide lender or alienee is not affected by the previous
mismanagement of estate, provided the lender or alienee was not a party to
mismanagement. In other words he shouldn't have acted mala fide. 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
(iii) If alienee acts bona fide & makes proper enquiries, the real existence of an alleged
sufficient & reasonably credited necessity is not a condition precedent to the
validity of alienation. In other words, the alienee's position is not affected by the
fact that if the minor's property were properly & better managed, the danger or
necessity would have not arisen
(iv) The alienee is not bound to see as to the actual application of money for the legal
necessity - he is not an administrator of fund
(v) Guardian/manager under a legal obligation to make an alienation as a prudent
man, but the mere creation of a charge on the minor's property for securing
 properly a debt cannot be viewed as imprudent management because money to be
secured on any 'estate' is likely to be obtained on easier terms than a loan which
rests on mere 'personal security'

In other words whenever an alienation is challenged it is for the alienee to show that there
was necessity - it is because when one deals with a person whom one knows or is
supposed to know to be a person of qualified powers, its one duty to satisfy oneself that
such a person has power to make alienations. However what he is registered to prove is
either that there was actual need or that he made proper enquires as to the existence of the
need & acted honestly and reasonable enquiry proved then immaterial whether actual
need was there or not or that he was deceived.
In present case, there was no suggestion that the debt of infant's father was contracted for
illegal or immoral purposes, during her management the widow (guardian/manager) with
the object of saving the estate, of paying the debt of her predecessors executed the
mortgage bond. No greater benefit cud be conferred upon an estate than to save it from
extinction by sequestration, the payment of arrears of revenue due to the government by
mortgage bond was in the nature of salvage expenditure. Therefore alienation will be
binding on the son.

Moreover a bond of this nature does not extinguish the title of the infant, it follows then,
as a matter of justice & equity that the mortgage bond is valid & of effect.