JUDGMENT
Pandrang Row, J.
1. This is an appeal from the decree of the District Judge of Chingleput dated 21st December 1933 reversing on appeal the decree of the District Munsif of Poonamalle dated 7th October 1932 in O.S. No. 321 of 1930 and dismissing the suit. The suit was one based on the following allegations. The plaintiff became an orphan in her eighth year and was under the protection of her elder brother who died in 1924. Thereupon, her brother’s widow was protecting her for some time and when she wanted to go to her parent’s house she sold the house described in the plaint schedule to the plaintiff in September 1925, defendant 1 who is the sister’s husband of the plaintiff being shown as her guardian in the deed. One of the provisions in the deed was that the plaintiff’s deceased brother’s debts were to be paid by the plaintiff and the remainder utilised for the purpose of the plaintiff, in particular to meet the expenses of her marriage. This took place when the plaintiff was about 15 years old.
2. The next year, that is to say, in 1926, defendant 1 sold the plaint property to defendant 2 for Rs. 1,200 though there was no necessity for the sale. Out of the consideration for the sale deed, Rs. 600 odd was utilised for discharging the debts of the plaintiff’s deceased brother which were no doubt binding on the property. The balance of Rs. 543-8-0 was paid in cash to defendant 1 by the vendee defendant 2, who took security in respect of the same from defendant 1. Out of this amount of Rs. 543-8-0 not a single pie was utilised for the benefit of the plaintiff. Defendant 2 knowing that defendant 1 had no right to the sale proceeds bought the property and paid the money and further made a nominal sale afterwards to defendant 3 in order to defraud the plaintiff. The plaintiff instituted the suit when she was 19 years old and she claimed to recover the balance of the sale proceeds, namely Rs. 543-8-0, together with interest at 12 per cent, per annum and also a charge on the plaint property for the amount claimed. Defendant 1 contended that he bad spent more than the amount received by him for the benefit of the minor including the expenses connected with her marriage, and that therefore nothing is due by him. Defendants 2 and 3 adopted this contention of defendant 1 and contended further that the plaintiff was not entitled to get a charge on the suit property and that she could only enforce the security bond taken by defendant 2 and recover only the amount of Rs. 400 specified in the deed of 1925. They denied their liability to pay any interest.
3. The first issue in the suit was whether defendant 1 had spent the amount of Rs. 543.8-0 for purposes binding on the plaintiff. This issue was found in the negative by the trial Court, though the trial Court was of opinion that as defendant 1 had maintained the plaintiff she would not be entitled to the entire amount of Rs. 543 but only to Rs. 400. The trial Court also found that the plaintiff was not entitled to interest and that she was not entitled to a charge on the plaint property. In the judgment the trial Court hold that the plaintiff was entitled to recover Rs. 400 from defendant 1 and from the property tendered as security under Ex. 3. In the decree however nothing was said about the plaintiff’s right to recover the amount by enforcing the security bond referred to, apparently because the bond could not be enforced in the suit as the plaintiff was not a party to it and the person who executed the bond was not a party to the suit. Appeals were preferred from the decree of the trial Court by defendant 1 as well as by the husband of the plaintiff who succeeded her as heir on the plaintiff’s death. In dealing with these appeals the lower appellate Court was of opinion that the following questions arose for decision, namely:
(1) Whether defendant 1 spent the whole of the Rs. 543-8-0 for purposes binding on plaintiff 1; (2) whether plaintiff 2 is entitled to the interest claimed; (3) whether plaintiff 2 is entitled to a charge on the properties sold to defendant 2 for the said sum of Rs. 543-8-0 and interest thereon; and (4) whether in the absence of a prayer for a personal decree against defendant 1, such a decree could be passed against him in this suit.
4. The first question was found in the negative, the finding being that defendant 1 had not proved that he had spent anything for the benefit of the deceased plaintiff. The other points were found against the plaintiff with the result that the suit was entirely dismissed without any relief being given to the plaintiff. The present second appeal is by plaintiff 2, that is, the husband of the deceased plaintiff. The facts stated above coupled with the concurrent findings on both the Courts below to the effect that no portion of the money received in cash by defendant 1 which amounted to Rs. 543.80 was spent by him for the benefit of the minor clearly show that there has been a miscarriage of justice in this case. The facts briefly are that the minor’s property was sold by the de facto guardian and not the legal guardian when the only necessity, if any, was to discharge the debts of her deceased brother which were binding on the property. The debts amounted to a little over Rs. 600 at the time of the sale by defendant 1. The rest of the consideration which was nearly one-half of the entire consideration was paid in cash by the vendee to the de facto guardian. No doubt he took the precaution of taking security to protect himself, but he failed to see that there was no protection to the minor by reason of the course adopted by him in paying nearly one-half of the consideration in cash to the de facto guardian. Even if it be assumed that there was a necessity to pay the debts and that the debts could not be paid except by selling the property, the vendee must have known that the payment made to the de facto guardian of nearly half the consideration in cash would not be binding on the real owner of the property, that is to say the minor. Such payment would certainly not amount to payment of the purchase money to the vendor. The vendor was a minor and defendant 1 only represented her in the transaction as a de facto guardian and not as a legal guardian. He had no authority to give a valid discharge binding on the minor. The amount therefore paid in cash to the de facto guardian, defendant 1, cannot be deemed to be a valid payment of the purchase money to that extent. It must therefore be held that to the extent of Rs. 543-8-0 there was no payment to the vendor and this amount with interest thereon from 19th June 1926, the date of Ex. 2, at 6 per cent, per annum, must be charged on the; property that was sold and the appellant is entitled to have a charge in respect of that amount on the plaint property. The remedy by way of proceeding against the security bond is one which is available to defendant 2 but not the appellant.
5. As regards defendant 1’s liability, it is established beyond doubt by the concurrent findings of both the Courts below; the reason given by the learned District Judge for setting aside the decree passed against defendant 1 by the trial Court is to say the least, technical and really unsatisfactory. It is not as if defendant 1 was taken by surprise. It was never his case that no decree should be passed against him because such a decree had not been asked for. His defence throughout was that he had spent the whole of the money for the benefit of the minor and this contention was found to have been not proved according to both the Courts below. The plaint does include a general clause asking for such further or other relief as the Court may seem fit to grant in the circumstances of the case and the lower appellate Court should have either hold that this general clause covered the prayer for a personal decree against defendant 1, or, if it was not prepared to do so, given an opportunity to the appellant to amend the plaint for the purpose of seeing that justice was done. So far as defendant 1 is concerned there was no ground for dismissing the suit as against him entirely. So far as he is concerned how-over there is no legal liability to pay interest and the personal decree against defendant 1 will therefore be limited to the amount of Rs. 543-8-0 with interest thereon at six per cent, per annum from the date of plaint till payment. The appellant is entitled to have his costs including the court-fee to be paid by him in all the three Courts from defendants 1 to 3, who will bear their own costs. Leave to appeal is refused.
