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PETITIONER: SRI CHANDRE PRABHUJI JAIN TEMPLE AND ORS.

       Vs.

RESPONDENT: HARIKRISHNA AND ANOTHER

DATE OF JUDGMENT22/08/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH

CITATION:  1973 AIR 2565            1974 SCR  (1) 442  1973 SCC  (2) 665

ACT: Guardians and Wards Act 1890-s. 29 read with s. 31(2)-Widow, mortgaged  property  of minors with  permission  from  Court without  disclosing  existence  of  a  will-Whether  minors’ estate liable.

HEADNOTE: One R. died in 1941, leaving behind him his widow one  minor son  and  .two  minor daughters.  Before  he  died,  he  had executed a will whereby he appointed his widow the  executor of the will and the guardian of his minor son and  daughters and  bequeathed  all his properties to the  minor  son  with directions  as  regards  maintenance  and  marriage  of  his daughters.  In 1948, the widow mortgaged certain  properties to  raise a loan of Rs. 7,000/- for the purpose of  marriage expenses of her elder daughter.  She filed an application to  this effect under ss.7 and 10 of the Guardian and  Wards Act without disclosing anything about the will. The  Court  passed  an order appointing  the  widow  is  the guardian  of the personal property of the minor and son  and daughter  and  by another order, granted her  Permission  to raise the said loan.  Accordingly, she borrowed Rs.  7.000/- by  mortgaging the houses.  Thereafter, in 1950.  she  filed two  applications  seeking permission of the High  Court  to raise a loan of Rs. 40,000/and Rs. 15.0001- on the  security of  the two houses.  She was allowed to raise  Rs.  30.000/- and  Rs.  10,000/- respectively by  mortgaging  the  houses. Thereafter. the widow filed another application praying  for permission  to sell one of the houses in order to  discharge the  amount due to the appellants under the  two  mortgages. The  permission  was  granted  and  the  Indian  Bank   Ltd. Purchased  one  of the house properties  for  Rs.  41,500/-. Subsequently.  the Bank came to know that R. had executed  a will  find  the Bank applied to the High Court to  have  the sale  set aside.  This was done.  When the existence of  the will was brought to the notice of the Court, the High  Court directed   the  Administrator  General  to  take   immediate possession  of  R.s  estate  and to  apply  for  letters  of administration.  The Administrator General obtained  letters of administration and took possession of the estate.  In the course  of  administration,  the A.G.  after  obtaining  the sanction  of  the Court, put up  sale one of the  houses  in

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question.   The Indian Bank purchased it for  Rs.  39,200/-. The sale proceeds are being retained by the A.G. The  appellants  thereafter, filed a suit  before  the  High Court  to  recover The money given under the  two  mortgages executed  in  favor of the appellants by the  widow  as  the guardian. The  respondent  namely, the Administrator General  and  the minor  son  contended  that the widow had  no  authority  to execute the mortgages and that she obtained the sanctions of the Court to execute the mortgages by practicing fraud  etc. The  High  Court  held that since the  appellants  were  not parties  to  the fraud and as they are not  required  to  go beyond  the orders, the appellants were entitled to  recover the  amounts  from  the properties mortgaged  and  passed  a preliminary decree. Against  this  decree, the respondents appealed  to  a  Full Bench.   The Full ’Bench held that an order under s.  31(ii) of the Guardians and Wards Act, 1890 can be relied ton by an salience  and  is a substitute for an honest enquiry  to  be made by him.  The Court passed a decree for recovery of  the amounts  from one half of the properties mortgaged.   It  is against  this  decree that this appeal by  certificate,  has been  preferred.  In this Court, the following  points  were raised by the appellants 443 (i)  That  the finding of the High Court that the  mortgages were  valid  only  on respect of one half  interest  in  the properties  was not correct.  According. to the  appellants, since  the  widow was appointed guardian in respect  of  the person  and  the properties of her minor son, and  the  fact that  the widow stated in the application to appoint  her  a guardian.  that  she  was  entitled  to  one  half  of   the properties,  and  the minor to the other  half,  would  not- conclude  the question that she was appointed guardian  only in respect of half share of the properties. (ii) That under the Act or under the inherent powers of  the Court, a guardian can be appointed only with respect to  all the  properties  of  the minor and not  in  respect  of  any specific item. (iii)     That  if  a  guardian is  appointed  for  all  the properties  of a minor in one district, it is not  necessary that there Should be a fresh appointment for the  properties of the minor in another district. Dismissing the appeal, HELD  :  (i) Since the widow had no power  to  alienate  the properties  Linder the will, and since she did not  disclose to  the  court about the curb on her  power,  the  sanctions obtained from the Court Linder s. 31(2) of the Guardians and Wards  Act 1890 on the application filed under s. 29  cannot be regarded as valid. The question, therefore, is whether appellants are  entitled to get the money advanced, tinder the mortgages as a  charge of the entire interest in these properties. [451B] (ii) The High Court granted the decree on the basis that the orders  of  sanctions  for mortgaging  the  properties  were valid.   If to avoid a decree for recovery of the  mortgaged money  from  the  entire  interest of  the  minor  in  these properties  be  refused  on  the  ground  that  the   orders sanctioning   the  mortgages  were  invalid,  it  would   be contradictory  to  the of the finding of High Court  on  the basis of which it passed the decree.  Order 41, r. 33 of the C.P.  clothes  the  appellants that the power  to  pass  any decree  or order which the trial court ought to have  passed and to pass or make such further or other decree or order as the justice of the case may require.

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The  respondents  would be entitled to avoid the  orders  of sanction in defence without the necessity of filing a  suit. provided they give restitution.  The High Courts have  taken the view that as a condition for setting aside a disposal of immovable  property made in contravention of s. 28 or s.  29 which is voidable under s. 30, it is just that there must be restitution of the benefits received. [451E,G] Parshotam  Das v. Nazir Hussan, 54 IC. 846,  Peria  Karuppam Chetty v. Kandasamy Chetty (1933) Madras W.N. 791, and Abbas Hussain v. Kiran Sashi Devi, A.I.R. 1942 Nagpur 12, referred to. (iii) In the present appeal, one item of the properties  has been sold by the A.G. through the sanction of the Court  and the  proceeds of the sale are with him.  Therefore a  decree is passed against the respondent/defendants directing them  to pay the appellants the principal amounts due  under the  two mortgages ’together with 6% interest from  June  1, 1950,  on the principal amount upto the date of  payment  or realisation.   The  amount decreed will be a charge  on  the sale  proceeds  of  one of the properties  which  are  being retained  by the A.G. and the entire interest in  the  other Property under the mortgage. [452E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1701  of 1967. Appeal from the judgment and order dated December 1, 1961 of the Madras High Court in O.S.A. No. 17 of 1957. 444 V.   M.   Tarkunde,  Harbans Singh and H. S. Dher,  for  the appellant. M.   Natesan and S. Gopalakrishnan, for respondent No, 1. The Judgment of the Court was delivered by MATHEW, J.--One Gopalakrishna Raju (hereinafter called  Raju died in Madras on or about November 13, 1941, leaving behind him  his  window  Manorama,  one minor  son  and  two  minor daughters.   On  March 25, 1941, Raju had  executed  a  will whereby  he appointed Manorama the executor of the will  and the  guardian of his-minor son and daughters and  bequeather a.1  his  properties  to the minor son  with  directions  as regards  the maintenance and marriage of his daughters.   On June 7, 1948, Manorama mortgaged certain properties to raise a  loan  of  Rs.  7,000/- for the  purpose  of  meeting  the marriage  expenses of her elder daughter.   Thereafter,  she filed  an  application  under  sections  7  and  10  of  the Guardians and Wards Act. 1890, hereinafter called the Act  ’ on  August  26,  1948, before the High Court  of  Madras  to appoint her as the guardian of her minor children.  In  that petition she did not disclose that Raju died after executing a  will, but said that Raju died leaving two houses Nos.  18 and 18A in Egmore, Madras and that she was the owner of  one half  of the houses and that her minor son was the owner  of the  other  half.  She also said that no guardian  had  been appointed  of  the  person or the property  of  the  minors. Along with the petition for appointing her as guardian,  she also filed an application seeking permission of the court to raise a loan of Rs. 7,000/,by mortgaging the two houses.  On September  9,  1948, the Court passed  an  order  appointing Manorma  as the guardian of the person and property  of  the minor  son and daughter and, by another order,  granted  her permission to raise a loan of Rs. 7,000/- by mortgaging  the two  houses.  On the basis of these orders, she  borrowed  a sum of Rs. 7,000/- on September 24, 1948, by mortgaging  the

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two  houses.  Thereafter, she filed another  application  on January  19, 1950, seeking permission of the High  Court  to raise  a  loan  of Rs,40,000/- on the security  of  the  two houses.   On January 23, 1.950, the application was  allowed under s. 29 of the Act permitting her to raise a loan of Rs. 30,000/- on the security of the two houses belonging to  the minor.  On the strength of this order, Manorama borrowed  on March  4, 1950, a sum of Rs. 30,000/- from the  trustees  of Shri  Chandre  Prabhuji Jain Temple, the  appellants  before this Court, by executing a mortgage of the two houses.   She again applied on April 24, 1950, to the Court for raising  a further  loan of Rs. 15,000/- on the security of  these  two houses but sanction was accorded to raise a loan of only Rs. 1.0.000/On  the basis of this order she borrowed  a  further sum of Rs. 1,000/from the appellants by executing a mortgage on May 31, 1950, of the same properties.  Manorama filed yet another  application praying for permission to sell  one  of the houses with a view to enable her to discharge the amount due  to  the  appellants  under  the  two  mortgages.    The permission was granted and the Indian Bank Limited purchased one  of  the house properties for a sum of Rs.  41.500/-  It would  appear that subsequent to the execution of the  sale, the bank came to know that Raju had executed a will.  So the bank applied to the High Court to                445 have the sale set aside.  This was done.  When the existence of  the will, executed by Raju was brought to the notice  of the   Court,   Krishnaswami   Nayudu,   J.   directed    the Administrator-General  to take immediate possession  of  the estate of Raju and to apply  for Letters of  Administration. The Administrator-General obtained Letters of Administration and  took possession of the estate.  In the course  of  the, administration,  the Administrator-General, after  obtaining the sanction of the Court put up for sale one of the  houses in  question.   The  Indian  Bank  purchased  it  for,   Rs. 39,200/-.   The  sale  proceeds are being  retained  by  the Administrator-General. The  appellants filed the suit on the original side  of  the High  Court out of which this appeal arises, to recover  the money due under the two mortgages executed in favour of  the appellants by Manorama as guardian.  The respondents, namely, the Administrator-General and  the minor  son,  contended  that Manorama had  no  authority  to execute the mortgages and that she obtained the sanctions to execute  the mortgages by practising fraud upon  the  court. They  also contended that the appellants had not acted  with due care, that the sanctions to mortgage given by the  court were  only prima facie evidence that the  transactions  were beneficial  to the minors but that they would not  cure  any inherent  defect that existed in the transactions, that  the enquiry  conducted by a court in granting sanction was of  a summary character, and that as the existence of the will has not  been brought to the notice of the court, the  sanctions to raise the loans were invalid and did not bind the minor. Balakrishna Ayyar, J. who tried the suit held that  Manorama deliberately  suppressed the execution of the will  by  Raju and  therefore,  the  orders authorizing her  to  raise  the amounts  by mortgaging the properties of the 2nd  respondent were  obtained by fraud.  The learned Judge,  however,  held that  since  the  orders  were only  voidable  and  as  .the appellants  were not parties to the fraud and as  they  were not  required to go behind the orders, the  appellants  were entitled to recover the amount from the properties mortgaged and passed a preliminary decree. Against this decree the respondents appealed and the  appeal

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was  referred  to  a Full Bench as  there  was  conflict  of opinion  on the question whether an order under s. 31(2)  of the  Act  granting leave to a guardian  for  alienating  the property   of  the  ward  was  conclusive  proof  that   the alienation  made  in  pursuance  thereof  was  supported  by necessity or benefit of the minor. The Full Bench held that an order under s. 31(2) of the  Act can be relied on by an alienee as a substitute for an honest enquiry  to be made by him; but that it will be open to  the minor  challenging the alienation to show that  the  alienee was  nut on notice at the time of the alienation of  matters which would show the defects in the transaction or that  the alienee did not act bona fide- It also held that where there is  no  evidence to show that  there  existed  circumstances exciting suspicion as to the way in which an order under  s. 31(2) was obtained, 446 the  alienee would be entitled to rely on it to support  his title,  but that an order under S. 31 C2) cannot be  treated always  as conclusive as to, the existence of  necessity  or benefit and that even as to the sufficiency of the-  enquiry to  be  made by the alienee, it would be competent  for  the minor  to prove that the alienee did have sufficient  reason not to rest on the mere order of the court.  The court  said further that if the minor proves that the alienee knew  more or  did not himself rely on the order but  made  independent enquiries-the onus being on the minor to prove it-the  order of  the  court will not afford conclusive  evidence  on  the question of enquiry.  However, if the alienee is not a party to any fraud and has no knowledge of any fraud the mere fact that the guardian was guilty thereof will not disentitle him to  rely  on  the order of the court as  proving  an  honest enquiry  by  him.   The court further  that  the  orders  of sanction  were  valid even though they were  made  under  s. 31(2) of the Act notwithstanding the fact that Manorama  was appointed  guardian  under  the will of  her  husband.   The further finding of the court was that the mortgages could be enforced  only against one half of the mortgaged  properties as  Manorama was appointed guardian only in respect of  that half.   The  court  was of the-view.that  the  sanctions  to execute the mortgages in respect of the two properties  were only  in  respect  of one-half  share  therein.   The  Court therefore, passed a decree for recovery of the amounts  from one-half of the properties mortgaged. It  is against this decree that this appeal by  certificate- has been preferred. The  most  important  point  canvassed  on  behalf  of   the appellants  was that the finding of the High Court that  the mortgages were valid only in respect of one half interest in the properties was not correct.  Counsel for the  appellants submitted  that Manorama was appointed pardon in respect  of the person and the properties of her minor son and the  fact the  Manorama  stated  in the  application  to  appoint  her guardian that she was entitled to one-half of the properties and  the  minor to the other half, would  not  conclude  the question that she was appointed guardian only in respect  of the   half  share  in  the,  properties.   Counsel   further submitted that under the Act or under the inherent powers of the  Court, a guardian can be appointed only of an the  pro- perties of a minor and not in respect of any specific  items and  that if a guardian is appointed of the properties of  a minor in one district, it is not necessary that there should be  a fresh appointment for the properties of the  minor  in another  district as under S. 16 of the Act,  a  certificate from  the court appointing the guardian would be  conclusive

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evidence  in  the  other  district  that  he  was  appointed guardian of the properties in that district also. In  the  application to appoint her  as  guardian,  Manorama stated  that only the two houses were inherited by  her  and the minor son from her husband and that she was entitled  to a half share in them with limited rights and that her  minor son  was  entitled  to  the  other  half  In  the  affidavit accompanying  that petition she said that she has  inherited half  of  the  estate of her husband of  the  value  of  Rs. 37,500/-.  The order appointing her as guardian stated  that she is declared guardian 447 of  the  person  and properties of the  minor  and  that  as guardian  she shall not, without previous permission of  the court, mortgage, charge or transfer by sale, gift,  exchange or otherwise any part of the immovable property of the minor or lease the same. In the application made by her for permission to execute the mortgage  for Rs. 30,000/- as guardian, she has stated  that she required the loan to discharge the debts and the demands then  existing against the properties belonging to  her  and her  minor son as heirs of her late husband.  The  order  of the  court on that application dated February  1950,  giving her  leave stated that "the applicant do have permission  to raise.  a  loan of Rs. 30,000/- on the security of  the  two houses  No.  18  and 18A".  In the reasons  given  for  that order,  the  court said that "the guardian is  permitted  to raise  a loan of Rs. 30,000,/- on the security of two  items of  property  belonging the minor viz., Nos. 18 and  18A  in Sait Colony, First Street, Egmore, Madras".  In the mortgage executed  in pursuance to this order of  sanction,  Manorama described’  herself as executing the mortgage  for  herself, and  as  mother and guardian as per the order  of  the  High Court in O.P. No. 269 of 1948, namely, the original petition for appointing her as guardian. The  court appointed Manorama as guardian of the  properties of  the  minor.   The  order does  not  show  that  she  was appointed  guardian in respect of the one half  interest  in the  properties.  A person looking into the order could  not have  found  any  limitation  in it.   A  purchaser  of  the properties  of minor could not be expected to go behind  the order. The  court  had no occasion to inquire nor did it  make  any enquiry  as regards the extent of the interest of the  minor in  the properties.  That apart, the orders sanctioning  the mortgages  in  fact  authorized  Manorama  as  guardian   to mortgage  the properties, even though in the application  on the  basis of which the order sanctioning the  mortgage  for Rs. 30,000/- was passed, Manorama said that she was entitled to one half interest in the properties and that the minor to the other half (see para 1 of her application dated  January 19,  1950 for sanctioning the mortgage for Rs. 30,000/-)  We think  that the orders sanctioning the mortgages  authorized her  to  mortgage  the properties  and  not  any  particular interest   therein.   If  her  capacity  to   alienate   the properties  of the minor is to be judged from the orders  of sanction,  its extent must be measured by these orders  read in the light of the order appointing her guardian. Section 28 of the Act provides                "Where a guardian has been appointed by  will               or other instrument, his power to mortgage  or               charge, or transfer by sale, gift, exchange or               otherwise, immovable property belonging to his               ward is subjected to any restriction which may               be  imposed by the instrument, unless  he  has

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             under this Act been declared guardian and  the               court  which made the declaration permits  him               by  an order in writing,  notwithstanding  the               restriction,  to  dispose  of  any   immovable               property  specified in the order in  a  manner               permitted by the order." 448 Manorama  did not make any application under  this  section. Nor was the court appraised of the will or the  restrictions which  it  imposed on her power of alienation.   The  court, therefore,  had no occasion to pass an order in  writing  as visualised  in  the section enabling her to dispose  of  any property  of  the  minor  notwithstanding  the   restriction imposed by the will. Section  29 says that where a person other than a  Collector or  than a guardian appointed by will or  other  instrument, has  been appointed or declared by the court to be  guardian of  the property of a ward, he shall not, with the  previous permission  of the court (a) mortgage of charge or  transfer by sale, gift, exchange or otherwise any part of the  immov- able  property  of his ward, or (b) lease any part  of  that property  for  a term exceeding five years or for  any  term extending  more than one year beyond the date on  which  the ward will cease to be a minor.  As Manorama was declared  by the will to be the executor and also guardian of the  minor, she  could  not have made an application for  permission  to mortgage  under s. 29.  Nor could the court have passed  any order  granting  permission under s. 31(2) to  mortgage  the immovable property of the minor.  The order sanctioning  the mortgage  for  Rs.  30,000/- was  ’expressly  passed  on  an application  made under s. 29.  Though there is, no  mention in  the order sanctioning the mortgage for Rs.  10,000/-  of the  section under which it was passed the order appears  to have  been made under s. 31(2).  But as already-stated,  the orders  could  not have been passed under s.  31(2)  on  the basis of the applications filed under s. 29 as Manorama  was a guardian appointed by the will of Raju. Mr. Tarkunde for the appellants argued that s. 3 of the  Act preserves  the  inherent powers of certain  High  Courts  to appoint a guardian and determine his powers and to  sanction any  alienation  by the guardian of the  properties  of  the ward, apart from the provisions of the Act.  He cited In  re Mahadev Krishna Rupji(1) and The Raja of Vizianagaram v. The Secretary of State for India in Council(2) and said that the High Court of Madras had inherent jurisdiction to appoint  a guardian  and determine his powers untrammeled by  the  pro. visions  of  the  Act.   In the first  of  the  cases  above referred  to,  it  was held by the Bombay  High  Court  that though  the  Act  does not sanction (,he  Appointment  of  a guardian in respect of undivided share of a minor in a joint Hindu Family, the High Court of Bombay had inherent power to appoint  a  guardian.  In the latter case, the  Madras  High Court  hold that the High Court has, under clause 17 of  the Letters  Patent,  1865, jurisdiction in  regard  to  minors, though not of British birth, resident outside the limits  of the  Presidency town and its jurisdiction to act under  that clause is not affected by the Act.  The court also said "the jurisdiction  of  the  High Court under  clause  17  of  the Letters  Patent  is  not in the  exercise  of  its  ordinary original  civil jurisdiction and it is saved by s. 3 of  the Guardsman and Wards Act which says that ’nothing (1) T. L. R. 1937 Bom. 432. (2) T. L. R. 1937 Mad. 383. 449 in  the  Act  shall  be construed to  take  away  any  power

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possessed by any High Court established under the Statute 24 and 25 Vic.c.104 It does not follow from these rulings  that the  principle underlying S. 28 of the Act should  not  bind the  High Court even while exercising its  inherent  powers. The  principle underlying s. 28 is that when a  guardian  is appointed  under  a  will  and  Ins  powers  are   expressly restricted by that instrument, the court must be apprised of the  will and of the restrictions on his powers  imposed  by the  testator  in  order  to  exercise  its  discretion   to determine   whether those restrictions should be removed  or not.   The  section  enacts a  salutary  principle  for  the exercise of its parental jurisdiction. Mr.  Tarkunde  said  that  s. 28 is  applicable  only  to  a guardian of the property of the minor, that the will of Raju declared  Manorama  only as guardian of the  person  of  the minor and therefore, s. 28 was not attracted. The definition of the word ’guardian’ in s. 4 (2) of the Act says  that ’guardian’ means a person having the care of  the person of a minor or his property, or of both his person and property.   In  the  matter  of  Sirsh  Chander  Singh   and Others(3) the court said that the question whether a  person is  appointed guardian of the person of the minor alone  but of his property also must be determined on a perusal of  the entire  document appointing him. if powers of  managing  the properties of the minor are vested in a guardian and express restrictions  are placed on his powers of alienation in  the course  of  the management, that is an indication  that  the appointment  is as guardian of the property also.   Manorama was  given power under the will to manage the properties  of the minor.  The fact that restrictions have been imposed  by the  will on her powers of alienation of the  properties  of the  minor  seem,;  to  us a  rather  sure  indication  that Manorama  was  appointed guardian of the properties  of  the minor  also.  To what purpose were the restrictions  imposed unless  she was also appointed guardian of the properties  ? Section  28  no doubt comes under the heading  "Guardian  of property".   But we are not sure that from that fact we  can infer that s. 28 contemplates only the case of a guardian of the  property of the minor.  However, we express no  opinion on  the question as that is unnecessary.  We proceed on  the assumption  that the section only applies to a  guardian  of the property of a minor. That  apart,  as the learned trial Judge rightly  held,  the orders  of  sanction were obtained by fraud and  they  were, therefore, on that account bad. Mr.  Tarkunde  said that the respondents  cannot  raise  the objection  in this appeal that the orders of  sanction  were invalid as the respondents did not appeal from the decree of the  High Court to recover the mortgage money from the  one- half  share  in  properties.  His  argument  was  since  the respondents  did not Me an appeal against that decree,  they cannot  be allowed to impugn the validity of the  orders  of sanction.  on  the basis. of which that decree  was  passed, and, if the orders of (1)  21 [1894]  I. L. R. Calcutta 206, 21 1. 450 sanction  are  allowed to be impugned here,  that  would  be allowing  the respondents to imperil the decree ill  respect of the half-share in the properties. It  is no doubt true that respondents cannot be  allowed  to impugn the decree passed by the High Court in favour of  the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not  be allowed  to’ urge the plea that the order, of sanction  wire invalid  when the appellants want not only to  maintain  the

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decree passed by the High Court   but also to yet a decree charging  the  entire Properties. :In other words,  the  bar against  urging the plea of the invalidity of the orders  of sanction would apply only if the respondents seek to  impugn the  decree already obtained by the appellants but not  when the  appellant seek to obtain further reliefs in the  appeal on  the  basis  of the orders.  In  such a case  we  are not aware   of  any  rule  of  law  which  would  preclude   the respondents from urging the plea. In   The  Management  of  Itakhoolic  Tea  Estate   v.   its workmen,(1)  the question whether in such  circumstances,  a respondent  who  has  not appealed from the  decree  can  be allowed  to  urge such a plea in answer to a  claim  ,by  an appellant  for  a  further decree although  the  plea  might imperil the decree already obtained was left undecided.  But the Full Bench decision of the Madras High Court in  Venkata Rao v. Satyanarayanamurthy (2 ) has held that ’it is open to a respondent who’ had not filed cross-objection with respect to the portion of the decree’ which had gone against him "to urge  in  opposition  to  the appeal  of  the  plaintiff,  a contention   which if accepted by the trial court would have necessitated  the total dismissal of the suit" but that  the decree  in  so for as it was against him would  stand.   The decree of the High Court here in so far as it held that  the mortgage money can be recovered only from the half share  in the  properties  was  also a decree in favour  of  the  res- pondents as it did not allow the claim of the appellants  to recover  it from the entire interest in the properties.   To that  extent, the respondents had a decree in their  favour. That decree they could support on any of the grounds decided against them by the court which passed the decree.  And when they  do  this, they are only supporting and  not  attacking that decree.  We think that the rule laid down by the Madras High Court in the above decision is sound.  And there is  no reason why the respondents should be barred from urging  the plea.  So even though we hold that the power of Manorama  as guardian  to mortgage the properties extended to the  entire interest  in  tie properties, it would not follow  that  the appellants would be entitled to a decree charging the entire interest in the properties as the orders of sanction on  the basis of which alone Manorama got the power to alienate  the properties were invalid. The  position that emerges from this discussion is  :  Under the  will Manorama had no power to alienate the  properties. As  the existence of the will and the curb on her powers  of alienation were not disclosed (1)  A. I. R. [1960] S. C. 1349.   (2) I. L. R. [1944]  Mad. 147. 451 to the court when she applied for sanction and as the  court did not by order in writing remove, the fetters on her power of  alienation, the sanctions cannot be regarded  as  having been obtained under s. 28; nor could the sanctions, as  they were given under S. 31(2) on the applications filed under s. 29, be regarded as valid, as Is. 29 has no application  when there is a will appointing a person as guardian. The question then is whether the appellants are entitled  to get  the money advanced under the, mortgages as a charge  on the entire interest in these properties. The  appellants  advanced the amounts  bona  fide  believing that.  there was necessity on the strength of the orders  of sanction  and  there  is  no  finding  that  there  was   no necessity.   These  orders were not void, even  though  they were  obtained by fraud.  That was the view  of  Balakrishna Ayyar,  J.  and  it was on the basis that  the  orders  ware

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voidable,  and that, until set aside, they were valid,  that the learned Judge granted a decree.  A disposal of  property in contravention of the provisions of s. 28 or s. 29 is only voidable (see s. 30).  We think that there is no reason why, when in defence to the claim by the appellants for a  decree charging  the  entire  interest in the  properties,  in  the appeal,  the respondents should not be allowed to show  that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent.   If the court were to refuse to pass  a  decree allowing the appellants to recover the money on the rest  of the  minor’s interest in the properties, the basis  of  that refusal  would  be  on a ground destructive  of  the  decree passed  by the High Court.  In other words, the  High  Court granted the decree on the basis that the orders of  sanction for  mortgaging  the properties were valid.  If  we  are  to refuse  to pass a decree for recovery of the mortgage  money from  the entire interest of the minor in these  properties, on  the,  ground that the orders sanctioning  the  mortgages were invalid, that would be contradictory to the finding  of the  High Court on the basis of which it passed the  decree. Order  41, rule 33 of the Civil Procedure Code  clothes  the appellate  court with the power to pass any decree or  order which  the trial court ought to have passed or made  and  to pass  or make such further or other decree or order  as  the justice of the case may require. Though  the respondents are entitled to avoid the orders  of sanction in defence without the necessity of filling a suit, it is just and proper that as a condition for doing no, they must  give  restitution-.  The High Courts in  this  country have taken the view, and we think rightly, that as condition for setting aside a disposal of immovable property- made  in contravention. of s. 28 or s. 29 which is voidable under  s. 30,  it  is  just  that there must  be  restitution  of  the benefits  received  [See Parshotam Das V.  Nazir  Husain(1), Peria  Karuppan Chetty v. Kandasamy Chetty(2), Abbas  Husain v. Kiran Shashi Devi(3).] (1) 54 I. C. 846.      (2) 1933 Mad.  W. N. 791. (3)  A. T. R. 1942 Nag. 12. 452 In  this view, we do not think it necessary to  express  any opinion  on the correctness or otherwise of the view of  the High  Court  on the. nature and effect of  an  order  passed under  S.  31 (2).  Suffice it to say that  different  views have been expressed by the High Court,,;. As already stated, one item of the properties has been  ,old by the Administrator-General with the sanction of the  Court and the proceeds of the sale are with him.  We pass a decree against the respondent-defendants directing them to pay  the appellants the principal amount due under the two  mortgages together  with 6 per cent interest from June 1, 1950 on  the principal  amount up to the date of payment or  realization. The amount decreed will be a charge on the sale proceeds  of one  of  the  properties which are  being  retained  by  the Administrator-General  and,  on the entire interest  in  the other property under the mortgages. The  decree of the High Court is set aside and a  decree  in terms as aforesaid is passed.  The appeal is allowed in  the manner and to" the extent indicated above.  The parties will bear their costs here. S.C. Appeal allowed. 453

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