Judgement Appeal (No. 125 of 1929) from a decree of the High Court (May 14, 1928) reversing a decree of the District Judge of Benares, which affirmed a decree of the Additional Subordinate Judge. The appellants, and their father Paltu (pro-forma respondent No. 7) brought a suit against respondents Nos. 1 to 6 to recover a house in Benares which had formed part of the ancestral property of their Hindu joint family. Paltus father, who died in 1919, had transferred the house to his son in law Phalgu, by a deed of 1915, which the plaintiffs alleged was fictitious and without consideration. The defendants were in possession under a purchase in 1919 from Phalgu. The appellants were both minors in 1919. The facts are more fully stated in the judgment of the Judicial Committee ; the terms of s. 41 of the Transfer of Property Act, 1882, also there appear. The trial judge made a decree for possession subject to the payment of Rs.1046 which the defendants had paid to discharge a mortgage upon the house. The defendants appealed to the District Court; there was no appeal by the plaintiffs as to the Rs.1046. The District Judge dismissed the appeal. He affirmed the findings of the trial judge that the house was joint family property and that it had been alienated without consideration by what he described as a sham transaction, and that Paltu had not consented to the deed of 1915. He held that the purchaser had made no inquiries as to Phalgus title, and that therefore s. 41 of the Transfer of Property Act was no protection to the defendants. An appeal by the defendants to the High Court was allowed. The learned judges (Kendall and Bennet JJ.) held that Paltu was estopped by s. 41 of the Transfer of Property Act, 1882, from maintaining the claim, and that the appellants were equally estopped. They found that Paltu by not taking steps to set aside the transfer of 1915 had impliedly consented to Phalgu being the ostensible owner. Further, that the finding of the District Judge as to the absence of inquiries by the purchaser was made without proper consideration of the evidence, that consequently under s. 103 of the Code of Civil Procedure it was not binding, and that upon the evidence sufficient inquiry had been made. 1931. Feb. 9, 10. Wallach for the appellant. Further, that the finding of the District Judge as to the absence of inquiries by the purchaser was made without proper consideration of the evidence, that consequently under s. 103 of the Code of Civil Procedure it was not binding, and that upon the evidence sufficient inquiry had been made. 1931. Feb. 9, 10. Wallach for the appellant. The decision of the High Court should be reversed on the following grounds. First, because Paltu was not competent to give express or implied consent on behalf of his minor sons to ostensible ownership by Phalgu. Secondly, because the findings of the District Judge were binding upon the High Court under the Code of Civil Procedure, ss. 101, 102. Thirdly, because there was no ground for applying s. 103, and the finding of the High Court was wrong upon the evidence. As to the first ground. By s. 11 of the Contract Act a minor is incompetent to contract, and he is therefore by s. 7 of the Transfer of Property Act not competent to transfer property or to consent to it being transferred ; further, the transfer not being for necessity was invalid. The minors disability precludes his father, even if guardian, from consenting on his behalf so as to raise an estoppel under s. 41 Dalibai v. Gopibai (( 1902) I. L. R. 26 B. 433.); Dambar Singh v. Jawitri Kunwar (( 1907) I. L. R. 29 A. 292.); Abdullah Khan v. Bundi. (( 1911) I. L. R. 34 A. 22.) The last two cited decisions were by the High Court at Allahabad. Further, in Brij Narain v. Mangla Prasad (( 1923) L. R. 51 I. A. 129.) the Board exhaustively considered the power of a father to deal with the property of the joint family so as to bind his son, and it was not suggested that the father by his laches could bind his son in relation thereto. Their Lordships desired that the first ground should be argued for the respondents before proceeding with the others. Dube for the respondents Nos. 1 to 6. Munnu Lal and after his death Paltu were managers of the joint Hindu family. In that capacity, and as to Paltu, as father, they were competent to consent to the ostensible ownership so as to bind the appellants under s. 41. Dube for the respondents Nos. 1 to 6. Munnu Lal and after his death Paltu were managers of the joint Hindu family. In that capacity, and as to Paltu, as father, they were competent to consent to the ostensible ownership so as to bind the appellants under s. 41. The principle of that section operated in India before the Act Ramcoomar Koondoo v. McQueen, (( 1872) 11 Bom. L. R. 46 (P.C.).) In Luchman Chunder Gur v. Kalli Churn Singh (( 1873) 19 Suth. W. R. 292 (P.S)) the Board held sons to be bound by the representation of their deceased father as to the ownership of property. [Sir Lancelot Sanderson. The family .there was governed by the Dayabhaga, so the sons took by inheritance.] An undivided joint family is to be considered a corporation whose interest necessarily centres in the manager Gan Savant v. Narayan Dhond Savant (( 1883) I. L. R. 7 B. 467.) ; the manager is therefore the proper person to consent under s. 41. There is no decision of the Board directly in point, but in Lingangowda v. Basangowda (( 1927) L. R. 54 1. A. 122.) it was held that a decree against the manager in that capacity is binding upon members who are minors. March 10. The judgment of their Lordships was delivered by SIR LANCELOT SANDERSON. This is an appeal by two of the plaintiffs in the suit, Shankar and Ramnath, against a decree of the High Court of Judicature at Allahabad dated May 14, 1928, which reversed a decree of the District Judge of Benares dated November 10, 1925. The last mentioned decree had affirmed a decree of the Additional Subordinate Judge of Benares dated August 6, 1925. Paltu, the seventh respondent and the first plaintiff in the suit, is the father of the plaintiff-appellants. Munnu Lal was the father of Paltu ; Munnu Lal, Paltu and the plain tiff-appellants were members of a joint Hindu family governed by the Mitakshara law, and the house, which was the subject-matter of the suit, was part of the ancestral property of the said joint family. The suit was instituted on November 8, 1924 ; at that time Ramnath was a minor, and sued through Shankar as his next friend. The suit was instituted on November 8, 1924 ; at that time Ramnath was a minor, and sued through Shankar as his next friend. The material facts are as follows — On May 8, 1915, Munnu Lal executed a deed conveying the said house to his son in law Phalgu, with the ostensible object of paying off debts. At the date of the above mentioned deed both the plaintiff-appellants were minors. Munnu Lal died in 1919, and after his death Phalgu executed and obtained the registration of a deed of sale of the said house in favour of Musummat Ganga Dei, the wife of Parsotam Misir. The last mentioned sale deed for which there was consideration was dated October 9, 1919. Parsotam Misir and his wife were the defendants in the suit. The first five respondents to this appeal are the heirs and legal representatives of Parsotam, who died after the institu tion of the suit, and the defendant Musammat Ganga Dei is the sixth respondent. The suit was brought to recover possession of the said house, of which the plaintiff appellants had been dispossessed in November, 1921, together with mesne prfits. The subordinate Judge made a decree in favour of the plaintiffs for possession of the said house on condition that they should pay the sum of Rs.1046 to the defendants within six months of the decree. The Subordinate Judge directed that, on payment of the said amount, the plaintiffs should get their costs of the suit from the defendants. It appears that the defendants had paid off a mortgage on the said house of Rs.1000 and Rs.46 interest thereon, and the learned judge was of opinion that in equity the plaintiffs ought to pay the said sums to the defendants before they could be allowed to obtain unencumbered possession of the said house. No question has been raised in this appeal with regard to the condition imposed by the Subordinate Judge and rightly so. In substance it was justified. The defendants as against the plaintiffs were entitled to stand in the shoes of the mortgagees in respect of the incumbrance upon the property which they had discharged out of their own moneys. The defendants appealed to the District Judge against the above-mentioned decree, and the plaintiffs filed a cross-objection alleging that the Subordinate Judge should have decreed the plaintiffs suit without the payment of any amount. The defendants appealed to the District Judge against the above-mentioned decree, and the plaintiffs filed a cross-objection alleging that the Subordinate Judge should have decreed the plaintiffs suit without the payment of any amount. The District Judge dismissed both the appeal and the cross-objection with costs. The heirs and legal representatives of Parsotam Misir appealed from the District Judge to the High Court, which allowed the ap 1930- 1931 I.A. V-58(195)peal, set aside the decrees of the District Judge and of the Subordinate Judge, and dismissed the plaintiffs suit the plaintiffs were ordered to pay the costs in all courts. The Subordinate Judge held that the deed of May 8, 1915, executed by Munnu Lal was without consideration, and without any legal or family necessity, and that really it was a sham transaction he held further that Paltu was not a consenting party to the said deed. These two findings were affirmed by the District Judge. Consequently they were accepted by the High Court, and this appeal must be decided on the assumption that these two findings are correct. The learned judges of the High Court held that Paltu was clearly barred by the provisions of s. 41 of the Transfer of Property Act (IV. of 1882), and that his sons, the plaintiff-appellants also were barred by that section. They based their decision on the conclusion that Phalgu was the ostensible owner of the house, that the defendants took reasonable care to ascertain that Phalgu had power to make the sale dated October 9, 1919, and that they acted in good faith that Paltu, who was in prison at the time of the execution of the deed, dated May 8, 1915, by his conduct after coming out of prison, and when he knew of the deed consented to Phalgu being the ostensible owner. They held further that the plaintiff-appellants, then minors, had not such a separate interest from that of the manager and the other adult members of the joint family as would enable them to avoid the estoppel employed by the said section of the Transfer of Property Act, and consequently that they were estopped in common with the rest of the family. The learned counsel who appeared for the respondents 1 to 6 in this appeal, confined his argument to this point, and endeavoured to uphold the High Courts judgment by relying on the provisions of s. 41 of the Transfer of Property Act. Their Lordships do not think it necessary to consider or decide the question whether Paltus conduct, after his release from prison, amounted to an implied consent on his part to Phalgu being the ostensible owner, for even if it did, such consent, in their Lordships opinion, in view of the facts of this case, would not affect the rights of his minor sons, the plaintiff-appellants. Their Lordships, however, must not be taken to affirm the finding of the High Court in this respect. Before considering the application of s. 41 of the Transfer of Property Act to the case of the plaintiff-appellants, it is desirable to refer to s. 7 of the same Act " Every person competent to contract and entitled to transferable property or authorized to dispose of transferable property not his own is competent to transfer such property either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force." It is to be noted that the power to transfer described in the section is qualified by the concluding words—namely, to the extent and in the manner allowed and prescribed by any law for the time being in force. Now Munnu Lal was the head of the joint Hindu family which was governed by the Mitakshara law at the time of the execution by him of the deed dated May 8, 1915. His power under such law to alienate the immovable ancestral property of the joint family was limited, and he could not make any alienation of the ancestral house, the subject-matter of the suit, unless he obtained the consent of the other members of the joint family, if they could give it, or unless there was some established necessity to justify the transaction. In this case, neither of the two conditions was fulfilled. The plaintiff-appellants were minors, and they did not and could not give their consent, and there was no established necessity for the transaction—inasmuch as it has been decided that the deed was a sham transaction. In this case, neither of the two conditions was fulfilled. The plaintiff-appellants were minors, and they did not and could not give their consent, and there was no established necessity for the transaction—inasmuch as it has been decided that the deed was a sham transaction. Consequently, no property passed by the said deed to Phalgu. The question then arises whether the plaintiff-appellants are prevented by the terms of s. 41 of the Transfer of Property Act from recovering possession of the said house. The terms of the section are as follows "Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith." There is no doubt that the plaintiff-appellants were persons interested in the said house within the meaning of the section, at the time of the said deed, dated May 8, 1915. The house was immovable ancestral property, and the family being governed by Mitakshara law, each of the plaintiff-appellants acquired a proprietary interest in such ancestral property by his birth. There is no suggestion that they gave any express consent to the transaction or to Phalgu being treated as the ostensible owner of the said house. Nor can any such consent be implied, for the plaintiff-appellants were minors at the date of the said deed of sale, and at all material times. By reason of such minority, they were not competent to enter into any contract, or to authorize any contract with relation to the alienation of the said immovable ancestral property. The learned judges of the High Court, however, as already stated, thought that if the manager and the adult members of the family consented to Phalgu being the ostensible owner of the said house, the plaintiff-appellants being then minors had no such separate interest " as would enable them to avoid the estoppel employed by s. 41." Their Lordships cannot accept that conclusion. The proprietary interest of each of the plaintiff-appellants in the said joint ancestral house was acquired by birth, and was equal to the proprietary interest of the adult members of the joint family. The proprietary interest of each of the plaintiff-appellants in the said joint ancestral house was acquired by birth, and was equal to the proprietary interest of the adult members of the joint family. In their Lordships opinion, there is no reason why full effect should not be given to the plain language of s. 41 of the Transfer of Property Act, and if that be so, it is clear that Phalgu was not the ostensible owner of the said ancestral family house with the consent express or implied of the persons interested in the said ancestral house, inasmuch as the plaintiff-appellants, who had an interest in the said house, did not and could not by reason of the disability of infancy give their consent. In their Lordships opinion therefore the plaintiff-appellants are not prevented by the terms of s. 41 of the Transfer of Property Act from alleging that the deed of May 8, 1915, was merely a sham transaction and that Phalgu had no authority to transfer the said house to the defendants. In view of the above-mentioned conclusion, it is not necessary for their Lordships to consider the question, as to which the Courts in India arrived at different conclusions, whether the defendants took reasonable care to ascertain that Phalgu had power to make the sale and whether they acted in good faith. For even if they did, s. 41 of the Transfer of Property Act will not avail them, inasmuch as Phalgu was not the ostensible owner of the said house with the consent express or implied of the plaintiff-appellants who had an interest therein. In view of the fact that Phalgu had no title in the said house which he could transfer to the defendants, and inasmuch as the defendants were not protected by the provisions of s. 41 of the Transfer of Property Act, the defendants must be held to have obtained no title to the said house. Consequently, the decree of the Subordinate Judge that the plaintiffs should recover possession of the said house was correct, and inasmuch as no objection is now raised to the condition, which the learned judge attached thereto, his decree should be restored. Consequently, the decree of the Subordinate Judge that the plaintiffs should recover possession of the said house was correct, and inasmuch as no objection is now raised to the condition, which the learned judge attached thereto, his decree should be restored. Their Lordships therefore will humbly advise His Majesty that the appeal should be allowed, the decree of the High Court set aside, and the decree of the Subordinate Judge, dated August 6, 1925, and the decree of the District Judge, dated November 10, 1925, should be restored. The respondents 1 to 6 must pay the plaintiff-appellants costs in this appeal and in the High Court.