JUDGMENT
Mohapatra, J.
1. The three defendants have brought this second appeal against the judgment and decree dated 13-4-1951 of Sri T. V. Rao, Subordinate Judge of Balasore arising out of a suit brought by the respondent-plaintiff for setting aside two alienations in favour of the present defendants-appellants by the guardian of the plaintiff while he was a minor.
The plaintiff’s main case is that the two alienations dated 24-11-1936 (Ext. A) and 14-3-1940 (Ext. D) by one Bipinbehari Mohanty (father’s sister’s husband of the minor) are not binding against –him as the transactions are not supported by legal necessity of the minor on the dates of alienations.’ The defence was that in fact Bipinbehari was the de-facto guardian and the transactions are supported by legal necessity.
2. Both the Courts below have come to the Ending that in fact Bipinbehari was the de facto guardian but nevertheless they have decreed the p laintiff's suit setting aside the alienations on the finding that they are not supported by legal necessity.
3. Ext. A dated 24-11-30 is for a consideration of Rs. 75/- in respect of an area 1.02. This transaction is in favour of appellants 1 and 2. Ext. D dated 14-3-40 is in favour of appellant No. 3 in respect of an area .90 for a consideration of Rs. 50/-. In both these transactions the alleged legal necessity is that the minor stood in need of purchasing new lands in the village of the de facto,
guardian Bipinbehari and as such Bipinbehari sold
away these lands to the appellants and further that
Bipinbehari in fact purchased lands in the name of
the present plaintiff on those very dates of the Kabalas.
It appears that in fact Bipinbehari had purchased a homestead land in his own village for and
on behalf of the plaintiff on 24-11-36 as per Ext. E.
He had further taken lease of a piece of land as
per Ext. F on 14-3-40 for the plaintiff. It is manifest that even accepting the version of the defence
to be true it cannot amount to support the legal
necessity.
It has been found and that rightly by the Courts below that the lands situate in the village of the plaintiff have not been shown to be unproductive or unprofitable to the estate of the minor and as they are his ancestral properties the guardian therefore had no jurisdiction for selling away the ancestral properties of the minor simply to purchase some lands in his own village which is more convenient to himself but nevertheless it cannot be taken to be beneficial to’ the interest of the minor. The Courts below therefore negatived the contention of the defence and decreed the plaintiff’s, suit for setting aside the alienations.
4. One extraordinary feature in the judgment of the lower appellate Court however appears in the last paragraph of his judgment where in the name of equity he has allotted the properties covered by Exts. E and F purchased in the name of the present plaintiff in the years 1936 and 1940 to the defendants-appellants. Manifestly they were not the subject-matter of the present suit and the parties did not join any issue in respect of any items of properties covered by Exts. E and F.
The defendants in their written statement itself never claimed any interest nor asserted that they may be allowed to get possession of the lands covered by Exts. E End F. But nevertheless the lower appellate Court has modified the decree passed by the trial Court in allowing a decree in favour of the defendants in respect of the properties covered by Exts. E and F, which are completely’ extraneous to the suit.
In my view, the lower appellate Court has certainly gone beyond his jurisdiction in modifying the decree passed by the trial Court. It has been drawn to my attention that the respondent-plaintiff has not filed any cross-appeal under the provisions of O. 41, R 22, C.P.C. But as the lower appellate Court went completely beyond his jurisdiction to modify the decree passed by the trial Court by bringing in properties extraneous to the suit, I can very well in this extraordinary case exercise my jurisdiction under the provisions of O. 41, R. 33, C.P.C. which appear to be very wide enough to cover such extraordinary cases.
I may simply refer to a Full Bench decision, of the Madras High Court reported in Subramanian v. Sinnammal, AIR 1930 Mad. 801 (FB) (A) where it has been held that the illustration given to R 33 is merely illustrative and not exhaustive, but, nevertheless the powers of the Court are wide enough to be exercised in fit cases for the sake of meeting out substantial justice to the parties. No hard and fast rule can be laid down to limit exercise of powers under O. 41, R 33.
5. I would, therefore, vacate the decree of the
lower appellate Court and dismiss the appeal filed
by the defendants. But in the circumstances of the
case I will however order that each party is to bear
and pay his own costs throughout.