Compliance with the provisions of Section 305 of the Civil Procedure Code does not render unnecessary the fulfillment of the requirements of Section 29 of the Guardians and Wards Act in a property dispute involving an infant's property.

JUDGMENT

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Huda in a suit for recovery, of possession of an one-third share of a homestead upon declaration of title and for incidental reliefs. The Court of first instance dismissed the suit upon appeal, the Subordinate Judge reversed that decision. On second appeal, to this Court, Mr. Justice Huda has set aside the decree of the Subordinate Judge and restored that of the primary Court.

2. The disputed property belonged to an infant, Kandrapa Kumar Sen, whose father, Kamini Kumar Sen, was appointed as guardian of his property by the District Judge. The root of the title of the plaintiff is a conveyance executed by the guardian on the 14th January 1906 with the sanction of the District Judge, and registered three days later. The foundation of the title of the contesting defendant is a prior conveyance executed by the guardian on the 4th April 1905 and registered six days later. This conveyance like the one previously mentioned, recites that "it has been executed with the sanction of the District Judge." The defendants, however, failed to satisfy the Courts below that the assertion made by the, executant of their conveyance was well-founded on fact; for whereas the record shows that the transaction of the 14th January 1906 was sanctioned by the District Judge, no order has been traced in favour of the transaction of the 4th April 1905. The case has, consequently, been tried on the hypothesis that the conveyance set up by the defendant, though, prior in point of time, was executed without the sanction of the District Judge, while the conveyance set up by the plaintiff, though subsequent in point of time, was executed with the sanction of, the District Judge. In these circumstances, the question arose whether the plaintiff is entitled to treat the defendants as persons without title and to obtain relief on that basis.

3. Section 29 of the Guardians and Wards Act, 1890, provides-that a guardian of the property of a ward shall not, without the previous permission of the Court, mortgage, charge or transfer by sale, gift, exchange or otherwise1, any part of the immoveable, property of his ward. Section 30 then ordains that the disposal of the Immovable property by a guardian in contravention of either of the two last foregoing sections, is voidable at the instance of any other person affected thereby. It consequently be maintained, that the conveyance which is the foundation of the title of the defendants is not liable to be impeached. The defendants have appreciated this danger and have relied upon a circumstance extraneous, to the provisions of the Guardians and Wards Act.

4. It appears that at the time when the transfer in favour of the defendants was made, the property was under attachment in execution of a decree for money held by a creditor of the infant. The transfer could consequently be effected, only with the sanction of the Execution Court obtained in the manner prescribed in Section 305 of the Code of Civil Procedure, 1882, which has since, been re-placed by O. XXI, r. 83 of the Code of 1908. The Court below has held that there, was substantial compliance with the provisions of Section 305 and we shall assume without discussion that this view is well-founded. This consequently raises the question, whether compliance with the provisions of Section 305 cures the defect which attaches to a transaction effected in violation of the provisions of Section 29 of the Guardians and Wards Act. The decisions in Dattaram v. Gangaram 23 B. 287 : 12 Ind. Dec. (N.S.) and Sarju v. District Judge of Benares 2 Ind. Cas. 359 : 31 A. 378 : 6 A.L.J. 491 point to the conclusion that the answer should be in the negative. These cases are authorities for the proposition that a private alienation though confirmed by the Execution Court u/s 305 of the Code of 1882, is not validated, if such alienation is made by a certificated guardian and the transaction is not co