JUDGMENT P. Subramonian Poti, J. 1. Is the alienation of property belonging to a minor governed by the Nair Act of 1100 by a person who is not the de jure guardian but who acts as the de facto manager valid, if it is shown to be supported by consideration and necessity and S. A. No. 1259 of 1966 7 October,1970 beneficial to the interests of the minor ? This is the question which calls for a decision in this case. Though this question has been decided by this Court itself earlier, learned counsel canvasses the correctness of the view taken by this Court and according to learned counsel, the decisions require reconsideration. 2. The appellant is the first defendant in the suit. He purchased plaint A schedule property which is 93/4 cents in extent belonging to the plaintiff under Ex. P2 dated 7-4-1954. At that time plaintiff was a minor. It was his mother, the second defendant, who purported to act as his guardian in executing that sale deed The 3rd defendant is the father of the plaintiff. He had also joined in the sale deed. not as representing the plaintiff, but as a person in whose favour a life-interest had been reserved in the property sold. In fact, the plaint property was a part of the property conveyed under Ex. P2 sale deed, the property conveyed being one obtained for the second defendant and her children under a partition in the tarwad. The tarwad of the second defendant divided the properties among its members under Ex. P1 partition in 1124. At that time second defendant had nine children including the plaintiff, of whom four were minors and one of the daughters had a child. Plaintiff obtained the 9th schedule in Ex. PL The shares of the plaintiff and other children of the second defendant as well as the second defendant's share were sold to the first defendant. The justification for such sale was that the property was practically yielding no income and with the proceeds of the sale, property which would yield more income could be purchased at Aryankavu where the father was employed. 1 need not go further into this aspect of the matter, because the main question is whether the sale deed was executed by a person competent to do it. 1 need not go further into this aspect of the matter, because the main question is whether the sale deed was executed by a person competent to do it. On attaining majority plaintiff has challenged the sale deed on the ground that it is wanting in consideration and necessity and is incompetent. Another minor made a similar challenge by another suit to the same sale deed so far as it affected that minor's share and that came up before me in S.A. 1230 of 1966. Various questions were raised in that appeal by counsel for the alienee, and I have dealt with them therein. Possibly, in view of this, learned counsel for the appellant confined his arguments in this appeal to the question of competency of the mother, the second defendant, to execute the sale deed for the property of her minor son so as to bind the minor son. 3. Though it was contended on the strength of the decision of the Full Bench of this Court in Cherian v. Bhasura Devi and another ( 1967 KLJ 529 ) that property obtained by a male member in a partition continues to be tarwad property and therefore the mother would be the guardian, this line of argument was not seriously pursued since apparently it would not be of assistance to sustain the plaintiff's case. The short answer to that contention would be that if the property is that of a tarwad consisting of that minor member alone, the mother who is a stranger to that unit cannot deal with the property belonging to that unit. There will be no question of guardianship in that event. This again is dealt with in my judgment in S.A. 1230 of 1966. 4. It is then argued that as a separate property of the minor, the mother, the de facto guardian was competent to sell it if that would result in benefit to the estate of the minor. Under the Nair Act of 1100 the mother would not certainly be the legal guardian unless she was appointed a guardian by court. Therefore even if she was acting in the best interest of the minor and that in the course of the, management of the properties of the minor, she could only be a de facto manager. Under the Nair Act of 1100 the mother would not certainly be the legal guardian unless she was appointed a guardian by court. Therefore even if she was acting in the best interest of the minor and that in the course of the, management of the properties of the minor, she could only be a de facto manager. If the case had to be decided by applying the principles of the Hindu Mithakshara Law, possibly, the plaintiff would have succeeded. Ever since the decision in Hanoomanpersaud Pandy v. Mussumat Babooee Munraj Koonweree (6 MIA 393) the courts in India have been consistently holding that in the case of a person governed by the Hindu Mitakshara Law "the right of a bona fide incumbrencer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto with the de jure title." This principle has been extended to sales of property by a de facto manager. 5. Independent of the dictum in Hanoomanpersaud Pandy Mussumat Babooee Munraj Koonweree (6 MIA 393) the Privy Council had occasion to consider alienation effected by a de facto manager under circumstances which would show that the alienation was one for pressing necessity. The Privy Council expressed the view that whatever may be the justification for such an alienation, so long as the person who alienated has no authority to do so, such alienation was held to be incompetent. This view taken by the Privy Council in Mata Din v. Ahamad Ali (ILR 34 All. 213) was reiterated in Imambandi v. Mutsaddi (ILR 45 Cal. 878). The person who acts on behalf of (he minor in such cases is not possessed of the authority of a guardian by having been declared to be so by the law governing the minor or by having been appointed as such by the court. Such a person would have no authority to deal with the property of the minor and in such a case his intentions or the ultimate good that may accrue to the minor are foreign to the question of validity of the transfer. Such a person would have no authority to deal with the property of the minor and in such a case his intentions or the ultimate good that may accrue to the minor are foreign to the question of validity of the transfer. It is, no doubt, true that it is very difficult to reconcile this with the dictum in Hanoomanpersaud's case. The two latter cases of the Privy Council concerned alienations by the de facto managers, of the property of Muslim minors. The law laid down by the Privy Council in Hanoomanpersaud's case continued to be applied to alienations of the properties of Hindu minors. By decisions ranging for about a century the law as regards Hindu minors has become settled though, off and on, learned Judges have doubted the correctness of the view in Hanoomanpersaud's case and the justification for the departure from the principle laid down in Imambandi v. Mutsaddi (ILR 45 Cal. 878) in the case of Hindu minors. The principle of stare decisis was often the answer. Some learned Judges felt that if the question was res integra, there would be no doubt that the logical view expressed by the Privy Council in Imambandi v. Mutsaddi (ILR 45 Calcutta, and the earlier decision in Mata Din v. Ahamad Ali (ILR 34 All. 213) should apply to Hindu minors also. In this connection I may extract a passage from the judgment in Ramaswamy v. Kasinatha ( AIR 1928 Mad. 226 ). "It is argued by the learned Advocate General that although both these cases before their Lordships of the Privy Council were cases under Mohammedan Law, the same principle should apply to cases under Hindu Law as the observations of the Lordships are general and apply to all cases where a person without authority takes upon himself the duties of a guardian of the minors. Reference has also been made to Narayanan Nambudiri v. Ravunni Nair. Reference has also been made to Narayanan Nambudiri v. Ravunni Nair. In this case the question was whether the wife of a person who was of unsound mind could alienate the properties as guardian even for necessary purposes and Jackson, J., in dealing with the rights, of a de facto guardian observed: A de facto guardian is scarcely distinguishable from an inter meddler; he may act from the best of motives and in the best interests of the minors and their estates; but he is equipped with no special authority and the validity of his act depends upon their condonation. Most of the discussions in the Courts below is only relevant as showing that Pappi Antarjanam had moral justification for her acts; it does not show that she had legal authority. Where the matter res integra, I would be disposed to hold that the observations of Lord Robson above quoted would be applicable equally to cases where the parties are Hindus as there is nothing peculiar to the Hindu system of jurisprudence which confers on a person J who without authority, assumes the office of guardianship any special powers." Chief Justice John Beaumont seems to have felt the same way as seen expressed by him in Tulasidas Jesingbhi Parikh Vaghela Raisingji Fulabhai (ILR 57 Bom. 40). 6. The observations of Lord Robson in Mata Din v. Ahamad Ali (ILR 34 All. 213), a decision to which I have already adverted, dealing with the powers of a de facto guardian are of a general character and on the face of it, it would apply to any system of law and there is no reason to consider the Hindu law as an exception to the rule. I think I should extract here the relevant observations of Lord Robson: "It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent, and, as such, were entitled to sell his property, provided that the sale was in order to pay his debts and was therefore necessary in his interest. It is difficult to see how the situation of an unauthorised guardian is bettered by describing him as a "de facto" guardian. He may, by his defacto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it." 7. It is difficult to see how the situation of an unauthorised guardian is bettered by describing him as a "de facto" guardian. He may, by his defacto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it." 7. Reconciliation between the view expressed in Hanoomanpersaud's case and the view expressed by the Privy Council in Mata Din v. Ahamad Ali (ILR 34 All 213) was attempted by Mahajan J. in the decision of the Federal Court of India in Bapayya v. Pundarikakshayya (1940 FLJ 318). The decision in Hanoomanpersaud's case was explained as 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. Mahajan J. seemed to think that the doubt expressed on the correctness of the view taken in Hanoomanpersaud's case by various learned Judges was really based on an incorrect appreciation of the Judgment in that case and of the Hindu system of Jurisprudence. The learned Judge concluded: "In my judgment therefore the rule laid down in Hanoomanpersaud Panday's cases 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 Mohammedan 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." 8. In view of what I have stated above, it is clear that the rule as regards Hindus governed by the Hindu Mitakshara law in regard to the question before me is different from the rule applicable to minors of other communities. In view of what I have stated above, it is clear that the rule as regards Hindus governed by the Hindu Mitakshara law in regard to the question before me is different from the rule applicable to minors of other communities. I had to go into the history or the background of the rule that a de facto manager who is not either declared by law or appointed by court as a guardian, can alienate the properties of a minor governed by the Hindu Mitakshara law, provided certain justifying circumstances are shown to exist, only because what is attempted by Shri Velayudhan Nair is to persuade me to apply the law regarding such Hindu minors to minors belonging to the Nair community, governed by the Nair Act of 1100. It is urged that such an approach has not been made in the decisions of this Court on this question and that is why counsel would urge that rethinking on this question, is called for by this Court. 9. I had referred to the various decisions on this question in my Judgment in S.A.1230 of 1966. The Travancore Cochin High Court in the decision reported in Vasu Pillai v. Prabhakaran Nair ( 1955 KLT 270 ) was dealing with the case of alienation of the property of a minor belonging to the Nair community. The same court considered the case of a Christian minor in Punnoose v. Korathu ( 1951 KLT 223 ). The Kerala High Court considered the validity of the alienation of a property of a Muslim minor in the decision in Avulla Hajee v. Mammu ( 1958 KLT 1184 ) and of a minor belonging to the Ezhava community in Sreedharan v. Chellappan ( 1959 KLT 897 ). In all these cases it was held that the alienation by a de facto manager will not be valid and binding on the minor. The rule in Hunoomanpersaud's case was not applied to the persons belonging to the Nair community as well as the Ezhava community though they were also persons belonging to the Hindu persuasion. That is, because, they were governed by a personal law different from the Hindu Mitakshara law and therefore there was no justification to import the principles of Hindu law to the cases arising in regard to such persons. It is this that is attacked by learned counsel for the appellant. 10. That is, because, they were governed by a personal law different from the Hindu Mitakshara law and therefore there was no justification to import the principles of Hindu law to the cases arising in regard to such persons. It is this that is attacked by learned counsel for the appellant. 10. According to learned counsel, Nairs being a class of Hindus, there is no justification to apply a principle different from that in Hunoomanpersaud's case to them. I cannot agree. The personal law relating to minority and guardianship in regard to persons belonging to the Nair community was being governed by the provisions of a statute, the Nair Act of 1100. The law on this and also matters like adoption, marriage and succession, in regard to members of the Nair community was not based on the Hindu texts. Neither the Smrities of Manu and Yanjnavalkya nor the exposition in the Mitakshara in regard to such matters normally applied to Nairs. They were governed in this, until statutory regulation came in, by the customary law which is compendiously referred to as the Marumakkathayam law. The rule peculiar to the Hindu Mitakshara law as to the competency of a de facto manager to alienate cannot be extended to the case of persons who are governed by a different personal law even if they happen to be Hindus. The rules relating to appointment and powers of the guardian of a minor belonging to the Nair community were to be found within the provisions of the Nair Act of 1100 and the customary law relating to the community. see no reason to hold that in this case that the de facto manager could deal with the properties of the minor so as to bind the minor. 11. In Vasu Pillai v. Prabhakaran Nair ( 1955 KLT 270 ) a case before the High Court of Travancore-Cochin, Sankaran J., as he then was, expressed the same view as that I have indicated above and I do not think that any departure from that view is called for. 12. In view of what I have stated above the second appeal must fail. But it is urged that the suit property covers the site of a part of a very costly structure and if decree is granted in respect of the suit property that would affect the entire structure. 12. In view of what I have stated above the second appeal must fail. But it is urged that the suit property covers the site of a part of a very costly structure and if decree is granted in respect of the suit property that would affect the entire structure. I have not been persuaded on the authority of any decision, to be influenced in my ultimate conclusion by reference to this circumstance. I cannot also see how the grant of a decree to the plaintiff could be avoided merely by reason of the injury that is likely to be caused to the defendant. 13. No other point was urged before me. In the result, the second appeal is dismissed with costs. Cross objection is not pressed. Hence it is dismissed.