JUDGMENT : P.K. Subramonia Iyer, J. This is a plaintiff’s appeal against the dismissal of his suit (O.S. 222/1122), on the file of the District Court of Anjikaimal, by the judgment and decree of the Additional District Judge of that Court dated 14th August 1950. 2. Plaintiff is the posthumous son and only issue of Srinivasa Venkiteswara Kummathy, a Gowda Saraswatha Brahmin governed by Hindu Law (Mitakshara), through his second wife Devaky whom he married as his first wife Lekshmi proved barren. Venkiteswara died in Mithunam 1102 M.E. in his 37th Year (Ex. XXXII) leaving him surviving his two widows as also his step-mother Rugmani alias Radha who was the eldest member of the family and who had an only daughter Puthamma alias Saraswathy. Radha assumed management of the affairs of the family on Venkiteswara’s death. Venkiteswara was a grocer. He continued the trade started and conducted by his father under the name and style of “Srinivasa Kammathy & Son”. Govinda Menon (PW.3) who was the accountant in the business for over 25 years continued it for a few weeks after Venkiteswara’s demise but one of Venkiteswara’s creditors to whom was owing an amount of over Rs. 1200/- filed a suit (O.S. 906/1102), attached before judgment the stock in trade and all movables in the shop, and the business then and therefore terminated. Four similar suits followed, the last of which was filed towards the end of Chingom 1103. The aggregate of these claims exceeded Rs. 4,000/- besides costs. (Exts. G = XXXI, H = XXX, J = XXIX, K = XXVIII and L= XXVII, certified copies of the Suit Registers). Pursuant to the attachment in O.S. 906/1102, cash amounting to Rs. 97-2-1 was secured and the movables attached were sold through Court. The total amount thus realised was Rs. 1162-1-10 (See Exts. W and Y, certified copies of the Court cash book). Venkiteswara had, in the year 1100, hypothecated his residential house with the appurtenant jenm paramba (item No. 3 in the plaint schedule) to the Nedugadi Bank Ltd. to secure an overdraft up to Rs.5000/- (Ext. XXXII) under which there was a substantial balance outstanding. Radha had a deposit in that Bank. She had filed O.S. 206 of 1102 challenging certain acts of Venkiteswara as not binding upon the family and upon her rights therein. XXXII) under which there was a substantial balance outstanding. Radha had a deposit in that Bank. She had filed O.S. 206 of 1102 challenging certain acts of Venkiteswara as not binding upon the family and upon her rights therein. The first two items of property in the plaint which constitute the bulk with an extent of 3 acres 19 cents belong in jenm to the Cochin Thiumala Devaswom. The Devaswom had leased them out on the verumpattom. They lie contiguous to the third item. The plaintiff’s grandfather Srinivasa Kammathy purchased the lessee’s right, attorned to the Devaswom and executed two pattomchits in the year 1076 which contained stipulations retricting the lessee’s right to compensation for trees on eviction. The Cochin Sirkar assumed management of the Devaswom under the Hindu Religious Endowments Act, I of 1081, and in 1094 demanded execution of fresh pattamchits by lessees on certain new terms which were proposed. Srinivasa Kammathy not having executed the proposed pattomchit, the Devaswom granted a melpattom to Sri. K.J. Guna Pai who filed O.S. Nos. 141 and 142 of 1096 as 2nd plaintiff with the Devaswom as the 1st, for eviction with arrears of rent for 3 years and for future rent at Rs. 4-12-3 and Rs. 73-7-1 respectively, after his (Srinivasa’s) death against Venkiteswara. Venkiteswara contested. He claimed full value of trees notwithstanding the limitations imposed by the covenant contained in the leases. This was one of the two matters of contest. The other related to the enforceability of the melpattom itself, the grant of which was contended to have been after Srinivasa Kammathy had accepted the offer of the Devaswom for the execution of fresh pattomchits on new terms. Pending those suits Venkiteswara executed a fresh pattamchit (Ext. 19) whereupon the Devaswom withdrew from the suits. The competency of the melpattomdar to continue the suits thereafter was questioned. All pleas were repelled and decrees were passed in the year 1100 for eviction granting the other reliefs claimed. Compensation for improvements was awarded at the contractual rate. Exts. XXI, XX and XXII, XXIII are respectively the decrees and judgments in the said suits. The total amount of compensation thus fixed for trees with the value of buildings (that is for all the improvements) are round about Rs.4000/-. Appeals 31 and 32 of 1101 made before the erstwhile Cochin High Court proved unsuccessful. 3. Exts. XXI, XX and XXII, XXIII are respectively the decrees and judgments in the said suits. The total amount of compensation thus fixed for trees with the value of buildings (that is for all the improvements) are round about Rs.4000/-. Appeals 31 and 32 of 1101 made before the erstwhile Cochin High Court proved unsuccessful. 3. The 19th Section of the Cochin Tenancy Act, II of 1090 which invalidated contracts taking away or limiting the right of the tenant to make improvements and claim compensation for them in accordance with the provisions of the Act is expressly made inapplicable to contracts made before 9th March 1912 (26th Kumbhom 1087) and therefore the leases sued on were not hit thereby. “Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application, and in a long series of decisions which will be found reviewed in the case of Rai Charan Mandal v. Biswanath Mandal) (1914) 20 CLJ 107), the doctrine has been recognised that there are cases where it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties”. (See Nuri Mian v. Ambica Singh, ILR XLIV Cal. 47 at 55). This view expressed by Mookerjee, J. has been followed by the Allahabad, Bombay and Nagpur High Courts (See AIR 1945 All. 311 , 1948 Bom. 396 and 1948 Nag. 1). In the last of the cases, Bose and Sen, JJ. (See Nuri Mian v. Ambica Singh, ILR XLIV Cal. 47 at 55). This view expressed by Mookerjee, J. has been followed by the Allahabad, Bombay and Nagpur High Courts (See AIR 1945 All. 311 , 1948 Bom. 396 and 1948 Nag. 1). In the last of the cases, Bose and Sen, JJ. said at page 11: “This doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or, that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.” As held by this Court in K.A. Sivagurunath Pillai v. State ( 1953 KLT 318 at 320): “When the person asking for a relief is bound to restore the subject matter immediately on getting it to the person from whom it is sought to be recovered, such relief should not be granted”. Venkiteswara might therefore have set up Ext. XIX in bar of the reliefs claimed in those suits against him because, should Guna Pai be granted a decree for eviction of the property, he could not retain it as he was bound to return it to Venkiteswara as subsequent melpattomdar. As Venkiteswara might have set up that defence, he ought to have done so and not having done it, he is precluded thereafter from relying upon that title as against the prior melpattomdar and those claiming under him. (See 40 Cochin 49 FB). The decree-holder Sri. Guna Pai had applied for execution but had not taken actual delivery. The above that is to say, the right to get the aforesaid value of improvements and retain possession until payment thereof, was the right that the family had over these properties. It was under these auspices that the plaintiff was born on 9.3.1103. Within a week of his birth, that is, on 15.3.1103, a power of attorney (Ext. Q) was given to Sri. A. Madhava Prabhu (DW.3) by Radha and Devaki, the latter acting also as guardian of her child, with a view to finding ways and means to liquidate the liabilities. On even date the donors of the power executed an agreement (Ext. P) for a division of the residue of the assets in the manner specified therein with a provision for Lekshmi’s maintenance. On even date the donors of the power executed an agreement (Ext. P) for a division of the residue of the assets in the manner specified therein with a provision for Lekshmi’s maintenance. On 7.4.1103 they, in conjunction with Sri. Madhava Prabhu, executed a deed of hypothecation (Ext. F) to the 1st defendant for a cash advance of Rs. 3,000/- which with the aforesaid amount in court, was necessary to discharge the claims under the said 5 suits. All the claims were, with certain remissions, discharged forthwith. A balance of Rs. 182-1-10 was returned to the Mukthyar from Court on 6.5.1103. (See Ext. M, Court cash book). 4. The Nedungadi Bank Ltd., after issuing notice of demand (Ext. XXXIX) dated 8.8.1929, assigned the balance of the overdraft of Rs. 1681-13-0 with the security to the 1st defendant on 12.2.1105 (Ext. XXXIV). On 4.12.1105 the 1st defendant filed O.S. 163/1105 to realise an amount of Rs. 4808-2-6 mortgage money, after crediting Rs. 840/- repaid on 18.5.1103 (See Ext. II, draft plaint proved by DW. 1 and Ext. XIV Day Book of the 1st defendant for the year 1103, page 11) with future interest and costs, by sale of the hypotheca, against the plaintiff who was then a minor as the 1st defendant, represented by his mother as guardian ad litem as also against Radha and Devaky as defendants 2 and 3. The defendants were exparte. On 17.1.1106 a decree was passed as sued for, in execution of which, a court auction sale ensued on 8.7.1107 whereat the 1st defendant was the purchaser. The sale was confirmed on 7.7.1108 and the Court issued a sale-certificate (Ext. XXXIV) to him. Ext. XXXVIII is the order of the Court dated 7.8.1108 on M.P. 1674/1108 filed by the purchaser directing delivery of the buildings to him (report of delivery returnable on 31.10.1108) and declaring that the possession (that is of the paramba) from that date will be not as receiver but under the sale certificate. The warrant was executed and delivery of the buildings given to the 1st defendant on 17.8.1108 Ext. XXXVII is the certified copy of the receipt granted by him acknowledging delivery. Presumably the purchaser had been appointed receiver of the properties comprised in the sale except the buildings thereon. The warrant was executed and delivery of the buildings given to the 1st defendant on 17.8.1108 Ext. XXXVII is the certified copy of the receipt granted by him acknowledging delivery. Presumably the purchaser had been appointed receiver of the properties comprised in the sale except the buildings thereon. There was a year’s delay in confirming the sale which could have been done under the Code of Civil Procedure on the expiry of 30 days. Ext. III (marked by mistake as (Ext. VI) is the draft of an application (MP 2032/1107) for the appointment of a receiver which is stated therein to have been necessitated, inter alia, by the delay in confirming the sale caused by an application, M.P. 1684/1107, filed by the defendants to set the sale aside. Raman Menon (DW. 2) who was the clerk of Advocate Shri. M. Narayana Menon, counsel for the purchaser-decree-holder (See Ext. XXXVIII) proves that that paper was in the file relating to the case in his master’s office, that he took out the file therefrom and gave it to the 1st defendant. The papers from that file produced in the case are Exts. I to IX. After taking delivery the 1st defendant leased one of the houses to the plaintiff’s mother Devaky under the cooly-charth. A suit (O.S. 323/1109) was filed for rent and for eviction on foot of it. Ext. XXIV is the certified copy of the Devaky’s written statement. Ext. XXV is the certified copy of the suit register relating to that suit which shows that the case ended in a decree as sued for. In the year 1111, the 1st defendant compromised the matters of the aforesaid decrees with Sri. Guna Pai on payment of Rs.3,300/- in full satisfaction and adjustment of all his rights and claims. Petitions for recording the compromise were filed and the claims were recorded as satisfied. Exts. XLVI and XLVII are the petition and order in O.S. 141 and Exts. XLIV and XLV those in O.S. 142. Those documents show that notices were ordered upon the applications for recording the compromise to the judgment-debtor as also to the attaching creditors. The judgment debtor Venkiteswara having died, the plaintiff was impleaded as his legal representative with his mother as guardian ad litem as he was a minor. There was no opposition to the recording of the compromise either by the judgment-debtor or by any attaching creditor. The judgment debtor Venkiteswara having died, the plaintiff was impleaded as his legal representative with his mother as guardian ad litem as he was a minor. There was no opposition to the recording of the compromise either by the judgment-debtor or by any attaching creditor. No details as regards the attaching creditors, the suit in which or the time when the attachment was levied are available from the records. 5. Thus the 1st defendant owes his verumpattom right in the property to the compromise with the melpattamdar decree-holder Guna Pai to and from whom possession must be deemed to have been delivered and retaken and the only right that the 1st defendant effectually obtained in consequence of the court auction in O.S. 163/1105 relates to the value of improvements, that is, about Rs. 4,000/- and to retention of possession till payment. 6. The income from the properties is mainly from the coconut trees, which is estimated by PW. 2 at about Rs. 600 per year, which is the only evidence in the matter. The estimate given by him is of the gross income. He was not able to mention what the dues to the Devaswom were and what would be the net income. DW. 3 swears that the paramba is low-lying and the trees are not very productive. Govinda Menon (PW. 3) gives no evidence on this head of income. The other income is from out of the vacant paramba leased out to labourers in bits for squatting with cutcha huts put up, each bit fetching 1 or 2 rupees a month. There were certain buildings belonging to the family which were also let out. The total income per month from all these is estimated by Govinda Menon at about Rs. 30/-. 7. In the plaint the plaintiff averred that the hypothecation in favour of the 1st defendant was not for consideration, that it was not for family necessity and that the transaction is not binding upon him particularly because his mother who acted as his guardian was herself a minor on its date. 30/-. 7. In the plaint the plaintiff averred that the hypothecation in favour of the 1st defendant was not for consideration, that it was not for family necessity and that the transaction is not binding upon him particularly because his mother who acted as his guardian was herself a minor on its date. The decree in O.S. 163/1105 obtained by the 1st defendant and proceedings in execution thereof culminating in the sale were challenged as not binding on him mainly on account of his mother, whose interests were adverse to him, having acted as his guardian ad litem and having not entered any defence though good defences were available as the deed of hypothecation sought to be enforced was obviously defective. The debts for discharging which the said deed was executed, could have been, it is stated in the plaint, discharged by sale of a part of the properties of the family or by realising outstanding and there was no need therefore to encumber all the items which were alleged to be of very large value. Item No. 1 in the schedule to the plaint was claimed as not comprised in the sale certificate. 8. The 1st defendant repudiated all the allegations in the plaint directed against the validity of the hypothecation in his favour and the decree obtained and purchase made by him. Item No. 1 was claimed as included in the sale and certificate. It was also contended by him that the suit was barred by limitation. 9. The learned Additional District Judge found that the impugned document (Ext. F) was not supported by justifying necessity “so as to bind the plaintiff and the estate”. He found also that the plaintiff was not properly represented in that transaction as his mother was herself a minor on its date. Consequent upon the said findings the decree and execution proceedings were held liable to be set aside “so far as they relate to the plaint mortgage”, that is, the mortgage dated 7.4.1103. This restriction was made because, the Suit Register Ext. XXXV, disclosed that the action was based on simple “mortgages” which might comprise the earlier mortgage in favour of the Bank as well. The learned Judge left the matter with the observation in paragraph 15 of his judgment that “if the decree was for that amount also, it is not liable to be set aside to that extent”. XXXV, disclosed that the action was based on simple “mortgages” which might comprise the earlier mortgage in favour of the Bank as well. The learned Judge left the matter with the observation in paragraph 15 of his judgment that “if the decree was for that amount also, it is not liable to be set aside to that extent”. On the question whether item No. 1 in the schedule to the plaint is comprised in the sale certificate obtained by the 1st defendant, which was the subject-matter of issue No. 4, the learned Judge recorded a finding in favour of the 1st defendant. The learned Judge assessed the income from the property at Rs. 960/- a year. On the question of limitation the learned Judge found that the Court auction sale was only voidable and not void and that the suit having been filed more than one year after the plaintiff attained majority, it was barred by Art. 9 of the Cochin Limitation Act, corresponding to Art. 12(a) of the Indian Act. In the result the suit was dismissed. 10. The appellant challenges the view of the court below as regards limitation and the 1st defendant who is the 1st respondent challenges the findings (1) that the mortgage dated 7.4.1103 was unsupported by family necessity and (2) that the plaintiff’s mother was a minor on the date of that document and could not therefore represent him. Respondents 2 and 3 represent a trust called the ‘Venkiteswara Seva Samithi to whom the 1st defendant gifted item No. 2 in the plaint schedule and who were for that reason impleaded as defendants 2 and 3 in the court below on mention having been made by the 1st defendant of the gift in his written statement. 11. Respondents 2 and 3 represent a trust called the ‘Venkiteswara Seva Samithi to whom the 1st defendant gifted item No. 2 in the plaint schedule and who were for that reason impleaded as defendants 2 and 3 in the court below on mention having been made by the 1st defendant of the gift in his written statement. 11. The points arising for decision in the appeal are the following:- (1) Whether Devaky was a minor on 7.4.1103; (2)If the answer is yes, whether the document would be rendered altogether void and unenforceable and what is the legal effect of Radha being one of its executants; (3) Whether the mortgage is supported by consideration and necessity; (4) Was O.S. 163/1105 to enforce that mortgage alone or was it also to enforce the mortgage in favour of the Nedungadi Bank; (5) Whether the interests of the plaintiff’s mother were adverse to those of the plaintiff and whether she could not for that reason represent the plaintiff as his guardian ad litem; (6) Whether item No. 1 in the plaint schedule is comprised in the decree and sale certificate in O.S. 163/1105; (7) Whether the suit is within time. Point No. (1) 12. Devaky’s paternal uncle Narayana Naiken, examined as the plaintiff’s 1st witness, swears that the female child whose birth is recorded in Ext. A which is the extract from the Register of Births and Deaths maintained by the Ernakulam Municipality, is Devaky, the informant of the birth and its date for the purpose of making the said entry being himself. He is aged 3 score and 10. A very searching cross-examination to which he was subjected has not succeeded in shaking his testimony. The Court below rightly rejected Devaky’s horoscope which was sought to be relied upon without calling its author. Govinda Menon (PW. 3) who was closely associated with the family for quarter of a century and who commenced his connection with it when the plaintiff’s father was a child, distinctly swears that Devaky was a minor in the year 1103 and that for that reason, as also for the reason that Lekshmi would not participate, he declined the offer of a power of attorney to him which was thereafter given to Madhava Prabhu. The learned Additional Judge has accepted the aforesaid testimony though he had not the advantage of examining the witnesses. The learned Additional Judge has accepted the aforesaid testimony though he had not the advantage of examining the witnesses. There is no reason why the said testimony should not be accepted and accepting it, the finding recorded by the learned Judge that Devaky was born on 22.10.1086 and that therefore she was a minor on the date of Ext. F is affirmed. Point Nos. (2) & (3):- 13. Being a minor the plaintiff’s mother Devaky who acted as his guardian was incompetent so to act. A minor’s contract is void under the Indian Contract Act. (See ILR 30 Cal. 539 P.C.). Ext. F however is executed also by Radha and Madhava Prabhu the power holder under Ext. Q, which in its turn suffers from the same infirmity as Ext. F in that Devaky’s signature thereto would count for nothing. Radha was a party to that document as well. The question is what is the effect of the junction of Radha in this deed (Ext. F) which transpires, for the aforesaid reason, to be a document executed by herself alone. She was a member of the family though not a coparcener and had interests in the family properties being entitled to maintenance. She was besides, entitled to be manager of the family as its eldest member, the only coparcener as also his mother and natural guardian being minors. “It has been held by the Nagpur High Court, that a mother thoughnot a coparcener in the joint family is in the absence of adult male members competent to act as manager of the family. Her acts as manager if they are for legal necessity or benefit to estate, would be binding on the joint family. (1947 Nag. 299, 1948 Nag. 775).” Mulla's Hindu Law, 11th Edition, 1952, pp. 280-281, para. 236. Were Venkiteswara the sole surviving coparcener, and therefore owner of the properties at his death, his widows and the elder of them Lakshmi would have had the right to manage in preference to Radha though she was older. ( 1953 KLT 515 FB). But Venkiteswara was not the sole surviving coparcener because his child through Devaky who was enceinte proved to be a son, i.e., the plaintiff whose rights commenced from the time of conception. (ILR XII Bom. 105 at pp. 109-110). ( 1953 KLT 515 FB). But Venkiteswara was not the sole surviving coparcener because his child through Devaky who was enceinte proved to be a son, i.e., the plaintiff whose rights commenced from the time of conception. (ILR XII Bom. 105 at pp. 109-110). Lakshmi as plaintiff’s step-mother had no right to plaintiff’s guardianship even if she wanted to exercise any such which she did not. “The Hindu law vests the guardianship of the minor in the sovereign as parens patriae (ILR (1942) 1 Cal. 19 at pp.39-40). Necessarily this duty is delegated to the child’s relations. Of these, the father, and next to him the mother, is his natural guardian; any other relative must derive his authority from the courts. (ILR (1940) Mad. 358 FB 367-368)”. Mayne’s Hindu Law, 11th Edition, pp. 285-286. The step-mother has no right to be the guardian of a minor. (2 Bor. 144, Borrodaile’s Reports Bombay Sudder Adawlut, 7 W.R. 321; ILR 1940 Nag. 221. Radha purported to act as manager in Ext. F, as the adjective 'grahabharanam’ used to qualify her in juxtaposition to the epithet ‘swastham’ used regarding Devaky has in the context that significance. 14. The evidence in this case is all one way and is to the effect that Radha was the Manager of the family after Venkiteswara’s death. All the 5 witnesses examined for the plaintiff alike swear that she was managing the family affairs after Venkiteswara’s death. Govinda Menon the accountant swears that he handed over the account books of the business to her. Indeed the plaintiff admits in paragraph 3 of the plaint that she assumed management as soon as his father died, though such assumption is stated there to have been on the advice of the 1st defendant. No attempt is made at the trial to prove the alleged advice of the 1st defendant which was denied by him. The evidence goes to prove not merely the factum but also the propriety and legality of Radha’s management which was accepted by all concerned, customers, neighbours, relations and well-wishers, on whose, counsel and with whose co-operation Radha withdrew her suit against Venkiteswara (O.S. 206/1102) and rapprochement between herself and Devaky was brought about removing the misunderstanding as regards her attempt at abortion and dropping the criminal proceedings against her. Radha agreed to the utilisation of the deposit in her name for liquidation of the liabilities of Venkiteswara. Radha agreed to the utilisation of the deposit in her name for liquidation of the liabilities of Venkiteswara. She endeavoured to continue the trade with Govinda Menon’s help. Govinda Menon who steered the ship all these years found the current too strong. He obtained time from the creditors for a while but could not do so for any considerable time. The scheme to continue the trade was shattered, by solid indebtedness. It became a wreck and what remained was merely a trial to salvage whatever title that could be. Except through external agency, nothing was possible. Govinda Menon who was acquainted with the creditors declined to act as power holder on account of Devaky’s minority and Lekshmy’s non-co-operation. A person of ability, influence and of unquestioned honesty and integrity was required and such any one was found in Sri. Madhava Prabhu who, besides possessing the above qualities, is a prominent member of the community to which the parties belong. He was then a practising lawyer. In his official life, he served the State in the judicial and executive departments as District Judge, Diwan Peishkar and Chief Secretary and after retirement has reverted to the bar. On a representation that Devaky was a major which was believed by him, he accepted the power or attorney executed by Radha as also by Devaky acting for and on behalf of the plaintiff who was the sole caparcener. (Ext. Q). Along with it, the parties entered into an arrangement to divide the residue of the assets after discharge of liabilities among themselves in the ratio of 1:2, providing for the maintenance of Lekshmi out of the 2/3. Should there be a residue, the debts had first to be discharged and discharged immediately for delay meant danger if not entire destruction. Five creditors who were merchants had already filed suits. The business had been stopped and all its belongings sold. The Nedungadi Bank though a secured creditor had advanced moneys to Venkiteswara on overdraft for the purpose of the business which had collapsed. Though they might set off the amounts in deposit with them, if any, in the name of Venkiteswara and even the amount deposited in Radha’s name on account of her admission contained in Ext. Q, there still remained a balance due whose payment could have been enforced. The precise extent of the liability had not been ascertained. Though they might set off the amounts in deposit with them, if any, in the name of Venkiteswara and even the amount deposited in Radha’s name on account of her admission contained in Ext. Q, there still remained a balance due whose payment could have been enforced. The precise extent of the liability had not been ascertained. Madhava Prabhu says it was between 7 to 9 thousand rupees and that the immovable properties were then of about that value. A verumpattom lease was at that time evictable and the tenant’s right was only to get, and to be in possession until he gets, compensation for improvements. The Cochin Verumpattomdar’s Act which conferred on Verumpattomdars freedom from eviction on certain conditions was passed only 15 years later i.e., in the year 1118. The outstandings due to the business have also not been ascertained. Govinda Menon’s view is that if all the outstandings were collected (it is clear that all could not be), the liabilities of the business could have been liquidated. It is obvious that no debtor of a collapsed business would be astute to repay especially in a retail trade in groceries where the only inducement to repay is the prospect of further if not larger purchases on credit. An immediate liquidation of the liabilities was called for which would induce concessions and rebates from creditors. Rs. 3,000/- in cash was required in that behalf and it was found from the 1st defendant for whose advance Ext. F was executed to him. Madhava Prabhu swears that the said Rs. 3,000/- was received from the 1st defendant and was actually used for discharging the liabilities with the amount in deposit in court on account of the attachment and sale in O.S. 906 of 1102. The situation whereof the above is by no means an exaggerated description necessitated the loan on the terms and with the security given for it. There has been no suggestion made that an advance could have been secured on terms less onerous or more advantageous. The stipulation in the deed for repayment in instalments of a couple of hundred rupees facilitated discharge as otherwise the whole amount would have had to be paid at one and the same time. (See Behari Lal v. Ram Ghulam ILR 24 All. 461). The Nedungadi Bank had to be paid interest quarterly. 12% was maryada palisa ie., fair rate of interest. (See Behari Lal v. Ram Ghulam ILR 24 All. 461). The Nedungadi Bank had to be paid interest quarterly. 12% was maryada palisa ie., fair rate of interest. (XVIII Cochin 287 FB Nambiyathan Namburi v. Sankara Menon). Borrowing money on personal security was out of the question because there was no person on whose security any loan could have been taken. The only two adult members of the family were widows whose personal security was worth nothing. It is true that a creditor advancing money to the manager of a family or the guardian of an infant heir in this case should not lend the money unless the particular transaction entered into is necessary for or beneficial to the family or the infant. If the situation could be saved by a simple loan that has to be preferred. If security be needed, a hypothecation or a mortgage with possession according as it is available or advantageous should be given. An outright sale should be the last resort. A debt whether secured or unsecured, could be liquidated and the security if given redeemed but an outright sale is a divestiture of property forever. (See AIR 1950 Orissa 270, 1950 DLR Cuttack (Orissa) 1, and AIR 1938 Nag. 476 & 482). The view taken in certain decisions that it is only a debt charged on property that can bind the estate of the infant heir and not a simple debt has been dissented from and the preponderance of judicial opinion is that what matters is the existence or the creditor’s or alienee’s bonafide belief in the existence of necessity or benefit regarding a particular transaction and not its form. 15. In the matter of incurring debts and making alienations so as to bind minors, the Hindu Law differs from other systems of law. (See Sriramulu v. Pundarikakshayya, AIR 1949 FC 218). The judgment of the Privy Council in Hanoomanparasaud Pandoy’s case (6 MIA 393) is a classic and has been regarded as even a source of law. The rule as regards alienations and debts is laid down by their Lordships thus:- “The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. The rule as regards alienations and debts is laid down by their Lordships thus:- “The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. 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........ Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real eexistance of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of this charge, and they do not think that, under the circumstances, he is bound to see to the application to the money......... The purposes for which a loan is wanted are often future, as respects the actual application, and a lender can rarely have, unless he enters on the management, the means of controlling and rightly directing the actual application. Their Lordships do not think that a bonafide creditor should suffer when he has acted honestly and with due caution, but is himself deceived”. (pp. 423-424). There was divergence of judicial opinion upon the question as regards the person contracting the loan or making the alienation. Their Lordships do not think that a bonafide creditor should suffer when he has acted honestly and with due caution, but is himself deceived”. (pp. 423-424). There was divergence of judicial opinion upon the question as regards the person contracting the loan or making the alienation. One view was that the rule “should be limited to cases of natural guardians or to persons who have some kind of authority whether as joint owners, trustees or otherwise on the property itself but it does not apply to cases of relations or friends who assume management of a minor’s estate in the absence of natural guardians who have no interest themselves in the property” (AIR 1949 FC 218 at p. 247) and the other view accepted Hunoomanparasaud Panday’s case (6 MIA 393) “as laying down the rule that a de facto guardian of a Hindu minor can alienate his estate in cases of necessity”. (AIR 1949 FC 218 at p. 247). Adverting to this difference of opinion and referring to the decisions taking the opposing view, his Lordship Mahajan, J. resolved the conflict and held that- “Under the Hindu system of jurisprudence it is the necessity of the loan and the pressure on the estate that are the touchstones on which its validity and binding character on the minor’s estate are judged, while in other systems of law its validity and binding character on the minor depends on the authority of the person incurring it”. (P. 250, para 114). His Lordship wound up the discussion thus:- “seems to me therefore that the construction placed on Hunoomanparasaud Panday’s case, 6 MIA 393; (18 WR 81 PC) by Beaumont C.J. in Bombay, by Manohar Lal , J. in Patna, and by Kumaraswami Sastri, J. in Madras, in the cases above cited is based on an incomplete appreciation of that judgment and of the Hindu system of jurisprudence. Full significance of Hindu Law text on the subject of debts does not seem to have been realised and the learned Judges were swayed by their own notions of that law in the light of other systems of jurisprudence. The decision in Hunoomanparasaud Panday’s case, 6 MIA 393 is in accord with the spirit of Hindu jurisprudence qua payment of debts incurred in certain emergent situations or in regard to alienations of immovable property effected in similar circumstances. The decision in Hunoomanparasaud Panday’s case, 6 MIA 393 is in accord with the spirit of Hindu jurisprudence qua payment of debts incurred in certain emergent situations or in regard to alienations of immovable property effected in similar circumstances. The joint family system, the limited powers conferred on a widow and on a Mahant are peculiarities of the Hindu system of jurisprudence. A deduction from these analogies is that a person not having full powers of disposition and hence not being fully authorised can in certain circumstances transfer property and confer a title absolute and indefensible on the purchaser though he himself does not possess that title. The pious obligation theory of Hindu Law under which a son is bound to pay the debts of his father is another instance in point. So far as I am able to see, Hindu jurisprudence is based on principles of ethics and moraity and whatever money has been taken or an act has been done which has benefited the real owner of the estate then that loan or act is not repudiated merely on the technical ground of want of authority in the person taking the loan or doing the act. The principle is that if the estate of a person whether a minor or absentee, or a joint proprietor, has been benefited by the act of a person who does not hold proper authority but who is in management of the estate then that act must be respected by the true owner and not repudiated merely on the ground of want of authority. In my judgment therefore the rule laid down in Hunoomanparasaud Panday’s case 6 MIA 393 regarding the powers of a de facto manager of a minor’s estate is based on Hindu system of jurisprudence and in this matter is different from Muhammadan Law and other systems of law. Moreover, this decision is now unquestionable even on the doctrine of stare decisis. As regards the scope of the rule, I have no manner of doubt that it has application to cases of relations and friends, who assume management of the property of a minor and who have some connection with the family and does not apply to utter strangers and intruders. Their acts of necessity performed to safeguard the minor’s estate are binding on the minor’s estate”. (pp. Their acts of necessity performed to safeguard the minor’s estate are binding on the minor’s estate”. (pp. 250-251) His Lordship has made an elaborate and exhaustive discussion of the texts of Hindu Law and the decisions bearing on the point which go to support the above conclusion. It is not necessary nor is it possible to add to what His Lordship and their Lordships Chief Justice Kania and Fazl Ali and Mukherjee, JJ. have said upon this question in Sriramulu’s case (AIR 1949 FC 218) and it would be sufficient to refer to that decision. 16. The debts in this case were those of Venkiteswara the father of the plaintiff which the plaintiff was under a pious obligation to discharge. The loan was in fact taken and utilised for the discharge of those debts. On account of their immediate discharge an advantage in the shape of remission was obtained. The actual pressure on the estate, the danger to be adverted or the benefit to be conferred upon it in the particular instance are the things to be regarded, said the Privy Council in Hunoomanparasaud Panday’s case indicating the existence of any one sufficient to sustain a transaction. There was the concurrence of all the three in the present case. There was pressure, danger to be adverted, and benefit was conferred. The transaction, Ext. F, which, on the finding that Devaky was a minor on its date, can and should be regarded as one entered into by Radha who was in de facto management of the family affairs and who was interested in the liquidation of the liabilities and conservation of the estate. It was one honestly and bonafide entered into with a view to salvage the family assets as much as possible. The agreement for division of the residue is a re-assurance of the bona fides of the transaction, particularly because of Radha’s throwing the deposit in her own name in the hotch pot and rendering it available for liquidation of liabilities. The only ground on which the learned Judge found against the necessity for the mortgage is that the liabilities could have been discharged by collecting outstandings. The only ground on which the learned Judge found against the necessity for the mortgage is that the liabilities could have been discharged by collecting outstandings. The learned Judge says:- “I am sure the power holder could have been able to get time from the creditors for collecting the outstandings and making payments especially in view of the fact that the matter has been entrusted to a respectable man like DW. 3. The plaintiff has no case that DW. 3 mismanaged the estate while it was under his control and I am satisfied that his conduct in the business was open and above board. But the question for consideration is whether the rule of strict economy and prudence has been observed so far as the estate of the minor is concerned. I regret that I cannot give a positive answer to this question. The rule of prudence ought to have told him to wait for some time, collect the outstandings, gain time from the creditors by making payments of portions of their debt, rather than rush into execute Ext. F. In this context the testimony of PW. 3 may be looked into. He was the accountant of the late Venkiteswara Kammathi for a period of 25 years. DW. 3 would admit that he has been of immense help to him in the matter of collecting the debts and making payments. He swears that the debts of the minor could have been discharged by the proceeds of the stock-in-trade and the collections of outstandings”. (end of paragraph 11). The learned Judge would appear to be inconsistent with himself in the above passage. When even the plaintiff has no complaint against the power holder that he mismanaged the estate, how could the learned Judge find that his act in executing Ext. F, which was a part of that management, was imprudent? When Madhava Prabhu, DW. 3 was in the box no question was put to him by the plaintiff whether he could not have obtained time from the creditors for payment and avoided execution of Ext. F because it is obvious on the facts that nothing short of immediate payment would suffice to meet the situation. Govinda Menon’s attempt to get time from the creditors succeeded only for a few days after which the creditors started litigation. Any further attempt especially after the collapse of the business would surely have been futile. F because it is obvious on the facts that nothing short of immediate payment would suffice to meet the situation. Govinda Menon’s attempt to get time from the creditors succeeded only for a few days after which the creditors started litigation. Any further attempt especially after the collapse of the business would surely have been futile. The learned Judge was not in order, under these circumstances, to have speculated as above and challenged the prudence of the transaction in the absence of an opportunity given to its author to explain. The learned Judge also misunderstood the evidence of Govinda Menon, PW. 3, who only swears that if all the outstandings were collected, it might have been possible to liquidate the liabilities. The accounts of the business whose production would have been useful were entrusted with Radha by Govinda Menon who assisted in the collection of outstandings after Madhava Prabhu was given the power of attorney. Madhava Prabhu swears that the accounts that were in his possession he entrusted to Radha. Radha was no more when the notice (Ext. XLIII) was issued on behalf of the plaintiff, two months before the suit was filed. The books and papers which were in Radha’s possession as manager of the family must, in the usual course, have come into the possession of the plaintiff. The records, however, do not reveal their whereabouts. It was up to the plaintiff to have informed the Court that he was not in possession of them if he was not, and to have attempted to get at them. This the plaintiff has not done. The reason for and the inference arising from that omission are obvious and need no comment. The learned Judge also refers to the possibility of finding funds for liquidating the debts by sale of movables in the shape of vessels and jewels. The evidence shows that the jewels were worn by Puthamma, Radha’s daughter. Presumably they were hers as she had been married, though she was living with her mother. The vessels that were available for sale were sold and the proceeds received by the power holder and utilised by him in discharging liabilities. A part payment was made to the 1st defendant towards the amount due to him under the mortgage. Presumably they were hers as she had been married, though she was living with her mother. The vessels that were available for sale were sold and the proceeds received by the power holder and utilised by him in discharging liabilities. A part payment was made to the 1st defendant towards the amount due to him under the mortgage. The details of the administration of the estate by Madhava Prabhu have not been ascertained nor are there records in the case enabling their ascertainment, should that be necessary, which it is not, especially as the propriety of his management was admitted. When a transaction is honestly and property entered into for the benefit of the family, the fact that subsequent events transpired otherwise than anticipated leading to non-fulfillment of the expectations entertained at the time, would be no reason to condemn it, as its propriety has to be judged on the facts and circumstances then existing unless it can be said that with ordinary far-sightedness the disappointing event that supervened could have been foreseen. That could not be and has not been said in this case. The income of the property has been assessed by the learned Judge too high. He took the maximum yield mentioned by the 2nd witness for the plaintiff as always available and by mistake took that to be the net whereas the witness meant that only as the gross income. The default in payment of rent to the Devaswom even by Venkiteswara is a circumstance which is one among those not adverted to by the learned Judge whose finding that Ext. F, the mortgage impugned, is not for the necessity of the family can in no view be supported. Point No. 4:- 17. Ext. XXXV (the Suit Register in O.S. 163/1105) shows that the suit was for enforcement of simple mortgage deeds. The cause of action is shown as having arisen on 7.4.1103 and on 12.2.1102. The first is the date of Ext. F and the second that of Ext. XXXIV which is the assignment by the Bank to the 1st defendant. Under the rules for destruction of records contained in the Cochin Civil Rules of Practice, the only records to be kept permanently are the Register of Suits and the Index. Other papers are subject to destruction after a specified number of years. XXXIV which is the assignment by the Bank to the 1st defendant. Under the rules for destruction of records contained in the Cochin Civil Rules of Practice, the only records to be kept permanently are the Register of Suits and the Index. Other papers are subject to destruction after a specified number of years. That period having elapsed, the plaint in that suit could not be produced either in original or by obtaining a certified copy of it. A draft of the plaint maintained by the Advocate in his office with certain other papers in the file were produced by the 1st defendant and were, as already stated, marked as Exts. I to IX. The Advocate’s clerk Raman Menon was examined as the 2nd witness for the defence who proved them. Ext. II is the draft of the plaint. It shows that the suit was for enforcement of two deeds of hypothecation, (1) Ext. XXXII executed by Venkiteswara to the Nedungadi Bank which the Bank assigned to the 1st defendant herein under Ext. XXXIV and (2) Ext. F which is the impugned deed of hypothecation. The amount shown as claimed in the Suit Register tallies with that shown in Ext. II. It is thus clear that O.S. 163/1105 was for enforcement of both the aforesaid mortgages. Learned counsel for the appellant contended that Ext. II cannot be looked into as it has not been properly proved. No objection was taken by the plaintiff in the Court below to the mode of proof when that document was marked as an Exhibit. If the proof afforded was insufficient to justify it being marked as an Exhibit and used as evidence, the plaintiff should have objected to its marking. “Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an Exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complaint for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial. A party cannot lie by until the case comes before a Court of appeal and then complaint for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial. In the present instance, it does not appear that the objection was taken at the proper time or that it would have been of any avail had it been taken.” - Per Sr. George Rankin in Gopal Das v. Sri. Thakurji, AIR 1943 PC 83 at p. 87. It is too late for the plaintiff to object to Ext. II being regarded as evidence in the case and if Ext. II can be looked into, it is not contended that the above would not be the proper conclusion. Point No. 5:- 18. Plaintiff’s mother Devaky attained majority, even according to the plaintiff, on 22.9.1104, that is, in the year prior to that in which O.S. 163 of 1105 was filed. She was a widow and continued to be such, not having remarried though young. The incapacity of a married woman to act as guardian ad litem under the Cochin Civil Procedure Code then in force did not attach to her. She was therefore competent in all respects to be the guardian ad litem of the plaintiff who was impleaded as the 1st defendant in that suit. The contention urged on behalf of the plaintiff is only that she was disqualified from acting as his guardian ad litem because her interests were adverse to those of the plaintiff, she having been the executant of the mortgage deed, Ext. F, which was sought to be enforced in the suit. It is true that she purported to act in that transaction for herself and as guardian of the minor plaintiff. The contention of the plaintiff in this case that having been a minor on the date of the transaction she could not represent him was upheld by the court below and that conclusion has been confirmed in this judgment. The result is that the plaintiff’s mother was not a party to Ext. F because the signature appended by her to that document is of no effect as a minor’s contract is null and void. The result is that Devaky was not a party to Ext. The result is that the plaintiff’s mother was not a party to Ext. F because the signature appended by her to that document is of no effect as a minor’s contract is null and void. The result is that Devaky was not a party to Ext. F. The only ground of her alleged disqualification and diversity of interests therefore disappears. The interests of the plaintiff’s mother are stated to be adverse to him because of her having committed herself by signing Ext. F which renders her impeachment of it improper if not incompetent. Having been a minor, her signature counts for nothing and she cannot be considered to have committed to anything thereby. The question whether the interests of an executant of a document as guardian of a minor or on behalf of a family consisting of a minor would be adverse to the minor so as to render his appointment as guardian ad litem of that minor in a suit improper under the proviso to the 4th rule of the 32nd Order of the Civil P.C. about which there is conflict of judicial opinion, does not therefore arise for decision in this case. The interests of the plaintiff and his mother are not in conflict or adverse to each other and the plaintiff’s mother was therefore perfectly competent to represent him as guardian ad litem. Point No. 6: 19. The learned Additional Judge has recorded a finding against the plaintiff upon this question. The first item is clearly included within the boundaries of the properties mentioned in the decree and the sale certificate. The only defect is that the extent shown is not that of the entire property comprised within the boundaries. The rule that in a case of conflict between boundaries and extent, the former shall prevail, as been well established. (See ILR 41 Cal. 493 PC, AIR 1939 Rang. 396 and 1952 Pat. 146). The boundaries in this case are clear and definite. Items 1 and 2 were being held under lease from the Devaswom. It is admitted as observed by the learned Judge that the item in question is included in the mortgage sued on. There was positive evidence adduced on the side of the defence that that item is also taken in by the boundaries shown in the plaint, decree and certificate of sale. It is admitted as observed by the learned Judge that the item in question is included in the mortgage sued on. There was positive evidence adduced on the side of the defence that that item is also taken in by the boundaries shown in the plaint, decree and certificate of sale. Applying the rule mentioned above and accepting the evidence tendered, the conclusion reached by the Court below is affirmed. Point No. 7:- 20. The learned Judge took the view that the period of limitation for the suit is one year under Art. 9 of the Cochin Limitation Act corresponding to Art. 12(a) of the Indian Act which reads as follows:- “9. To set aside any of the following sales:- (a) sale in execution of a decree of a Civil Court One year When the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought”. The contention urged by learned counsel for the appellant is that the view is erroneous for various reasons. Firstly that the period to be reckoned is not the period of limitation for setting aside the sale to which alone the said Article applies. It is urged that what is sought to be set aside is not only the sale but also the decree in execution of which the sale was held because the debt for whose recovery the decree was passed was not binding on him. It is argued that for the reliefs by way of setting aside the decree and the document evidencing the debt, the plaintiff has a period of 6 years from his attaining majority under the residuary Art. No. 120 or at any rate 3 years. The contention is that it is competent for a minor defendant in a suit, after attaining majority to contest the factum and binding character of a debt contracted by a guardian and that if in such a suit he succeeds, the decree for its enforcement would be rendered void with the necessary consequence of rendering the sale in execution whereof also void. The next step in the argument is that if the decree and sale are thus rendered void, they may be disregarded as never having had any existence and there is no need to set either of them aside by a suit. The next step in the argument is that if the decree and sale are thus rendered void, they may be disregarded as never having had any existence and there is no need to set either of them aside by a suit. The article of the Limitation Act fixing a period of one year to set aside court auction sales would, therefore, become inapplicable. Secondly, it was contended that if the guardian ad litem was negligent in the conduct of the case it would be as though there was no representation of the minor who should in that event be regarded as not a party to the proceedings, a decree passed wherein would be null and void, the sale in execution of which would also be void rendering a suit for setting either aside unnecessary. It was rightly conceded by learned counsel for the appellant that the consequence of the sale being void would ensure only if the decree in execution of which the sale is held be void and that if the decree be only voidable at the instance of the minor, it would be good until set aside, and execution levied before its being set aside would be good and the sale held by court would also be good. The sale might be liable to be set aside by a suit. Such a suit has to be filed within one year after confirmation of sale under Art. 12(a) of the Limitation Act. The question then is whether the decree in O.S. 163 of 1105 is void or voidable. 21. It has already been found that the suit comprised claims to enforce two mortgages, one executed by Venkiteswara and the other by Radha. The first has not been as it could not be, impeached. That mortgage was in respect of item No. 3 in the plaint namely the jenm property. There was no defence as regards that part of the claim. The other was to enforce repayment of the loan taken by Radha which has been found to be true and for necessity. Nor was there, therefore, any defence to be entered as regards the other part of the claim. A guardian ad litem is not bound to contest a claim when no defence is available and a guardian’s conduct cannot be characterised as negligent merely because of the non-entry of a defence where none exists. (See 14 MIA 393). Nor was there, therefore, any defence to be entered as regards the other part of the claim. A guardian ad litem is not bound to contest a claim when no defence is available and a guardian’s conduct cannot be characterised as negligent merely because of the non-entry of a defence where none exists. (See 14 MIA 393). It is urged on behalf of the appellant that the guardian must have set up the minority of Devaky in defence and that she was negligent in not having set up that plea. It is true that if that plea had been raised, it would have succeeded as it did succeed here. That, however, would be no answer to any part of the claim for relief made in the plaint because Ext. F the mortgage sued on would be a good transaction as one entered into by Radha alone. The matter would have been different had Radha not been a party to it in which event the document would have been altogether void but Radha was a party and she was the manager of the family entitled, under the Hindu Law, to borrow for purposes necessary for the family or the minor heir as the case may be which debt the minor heir or the sole coparcener would be liable to discharge. If the transaction of loan be entered into on the personal security of the borrower alone, the creditor would not be entitled to an action directly against the family or the sole coparcener on foot of the covenant entered into. If, however, the loan is taken charging the property of the family or the infant heir, direct action for its enforcement is available. In this case the loan was taken on the security of the property which belonged to the plaintiff as the sole coparcener (See AIR 1950 TC 30 FB and 1953 KLT 515 FB) but Radha had interests in it as a widow entitled to maintenance. In this case the loan was taken on the security of the property which belonged to the plaintiff as the sole coparcener (See AIR 1950 TC 30 FB and 1953 KLT 515 FB) but Radha had interests in it as a widow entitled to maintenance. Even in cases where a loan is taken whose repayment could not be enforced by direct action by the creditor against the family or the minor as the case may be, the creditor can avail himself of the right of the borrower to reimbursement from the property of the family or the minor on whose behalf or for whose benefit the loan was taken and on the application of the principle of subrogation seek recovery of the amount, by this indirect process, from the family or minor. “In my opinion, it is therefore right to hold that when a loan is taken for the purpose of necessity or benefit of the minor’s estate by a de facto manager, he cannot effect a transaction so as to exclude his own liability. So far as the creditor is concerned this involves no hardship because he can proceed against the de facto manager and make the minor’s estate liable on the principle of subrogation. This does not hurt the honest de facto manager because he has got the necessary facts and materials to show that the transaction was for necessity of the minor or for the benefit of his estate. It does not adversely affect the minor’s interest because when a claim is made and the facts show that the transaction was for necessity or for the benefit of his estate and he has no claim against the de facto manager for maladministration, his estate should meet the obligation. Moreover, since 1856, appropriate acts have been passed by the different Legislatures to enable the parties to obtain an order of the court to safeguard the interest of the minor and protect the guardian also. In my opinion, therefore, the law as it stands permits a de facto manager to borrow money for the necessity or the benefit of the minor’s estate, so as to make the minor’s estate liable for the loan when he can do so without making out a contract between the minor and the creditor”.- per Kania, C.J. in AIR 1949 FC 218 at 222. “There may however be cases in which the minor’s needs have to be met and in such cases, the third principle enunciated by the Privy Council can come into play, that is to say, the manager or guardian can show that the estate ought to bear the burden which he had taken upon himself. In such cases, by the principle of subrogation, the creditor might be allowed to stand in the shoes of the guardian and invoke the latter’s right to reimbursement out of the minor’s estate. That right must usually be subject to the state of accounts between the guardian and his ward”.- per Fazl Ali, J. AIR 1949 FC 218 at 226. “The position therefore is that in case of contractual debts borrowed either on simple bonds or promissory notes the creditor can have recourse to the minor’s estate indirectly on the principle of subrogation, when the guardian has the right of indemnity against the estate of the ward; and he would have the right of direct reimbursement out of the properties of the infant, only when the debt is for necessaries supplied to the infant. In this way can effect be given to the personal law of the Hindus in respect of the liability of a minor’s estate for debts contracted by the guardian for legal necessity without infringing in any way the basic principles of the law of contract, and in this way alone, the different pronouncements of the judicial committee mentioned above can be consistently explained.”- per Mukherjea, J., above case p. 238. In this case Radha had rendered herself personally liable under Ext. F and under the Hindu Law she, as de facto manager, was competent to encumber the properties for the loan which was necessary for discharging the debts of the plaintiff’s father. The claim was, therefore, directly enforceable by the creditor against the plaintiff. The creditor was in any event entitled to rely upon the right to reimbursement possessed by Radha of the amount borrowed under Ext. F with interest thereon and upon the principle of subrogation claim its recovery from the family property. There was thus no defence at all to be entered in O.S. 163 of 1105 and therefore it cannot be said that Devaky, the plaintiff’s guardian ad litem was in any manner negligent in not having contested the suit. F with interest thereon and upon the principle of subrogation claim its recovery from the family property. There was thus no defence at all to be entered in O.S. 163 of 1105 and therefore it cannot be said that Devaky, the plaintiff’s guardian ad litem was in any manner negligent in not having contested the suit. As this conclusion is reached on the facts of this case, the question whether, when a guardian is negligent, the minor would be regarded as not having been represented according to the degree of the negligence- a matter in which there is conflict of judicial opinion- does not fall to be discussed or decided. 22. The decree in O.S. 163 of 1105 being thus good and not void, a suit to set aside the Court auction sale held in execution thereof must be brought within one year as provided by Art. 12(a) of the Limitation Act, in this case within one year after the plaintiff attained majority and not having been brought within that time, it is barred by limitation and the court below rightly dismissed it on that ground. (See XXXVIII Cochin 379 FB). 23. In the result the appeal is dismissed with costs, Advocate’s fee one set. The appellant will pay the court fee to the State, having been permitted to appeal as a pauper. The memorandum of cross objections filed by the 1st respondent which relates to costs disallowed by the court below is allowed but in the circumstances without costs. K. Sankaran, J. I agree. K.S. Govinda Pillai, J. I too agree. Dismissed.