JUDGMENT

Macpherson, Officiating C.J.

1. There is but one point raised in this special appeal. The plaintiff seeks to set aside a sale made during his minority by his elder brother Ashootosh Chatterjee, who was his guardian appointed by the Court under Act XL of 1858. The Court below has found that the purchaser (the respondent) did not act fraudulently in the matter; that he gave a fair price; and that the condition of the estate necessitated a sale, The question is whether such a sale is had, and can now be set aside for the one reason that the sanction of the Court, which s. 18 of Act XL of 1858 declares necessary, was never obtained.

2. S. 18 enacts that every person to whom a certificate shall have been granted "may exercise the same powers in the management of the estate as might have been exercised by the proprietor if not a minor; and may collect and pay all just claims, debts and liabilities due to or by the estate of the minor. But no such person shall have power to sell or mortgage any immoveable property, or to grant a lease thereof for any period exceeding five years, without an order of the Civil Court previously obtained." This is not a simple direction that the sanction of the Court shall be obtained. It is a positive declaration that, in the absence of such sanction, the guardian has no power to sell. If the guardian, having no power to sell, does sell, does he pass a good title to the estate? All persons being presumed to know the law, it must be presumed that the purchaser took with knowledge that, except with the sanction of the Court previously obtained the guardian had no power to sell to him.

3. We have been able to find only three cases reported which bear at all upon the question, and in no one of them is it actually decided See also the observations of Markby, J. in Gopalnarain Mozoomdar v. Muddomutty Guptee, 14 B.L.R., 21, at p. 29.

4. The first is in the matter of the petition of Busunto Coomar Ghose Ante, p. 351, where, the matter not arising for judicial decision, it is said by Jackson, J., that the guardian in granting a mortgage of the minor's property acted in direct violation of s. 18 of Act XL, and that the mortgage so executed without the order of the Court would be invalid.

5. The Court of Wards v. Kupulmun Sing 10 B.L.R., 364 was a case under the Lunatics Act, XXXV of 1858. The words in s. 14 of that Act are the same as those in s. 18 of Act XL of 1858,--that the manager shall not have power to sell or mortgage without an order of Court previously obtained. Referring to this section, Phear and Morris, JJ., have declared that, without the sanction of the Court, the manager can pass no good title.

6. A Division Bench in Alfootoonnissa v. Goluck Chunder Sen Ante, p. 353 declined to disturb a mortgage made by a guardian without sanction. But this was after a suit (to which the minor was a party) had been brought on the mortgage, and a decree had been given in favor of the mortgagee.

6. However much we may desire to support a purchaser who has not acted dishonestly, and by whom a fair price has been paid, we think it impossible to declare a sale valid which is made by a guardian without the sanction which s. 18 requires. The words are very strong. It is not merely that they contain a direction that the sanction of the Court shall be obtained: they say without an order of Court previously obtained the guardian shall absolutely not have the power to sell. It seems to us we are bound to treat the sale as made by one having no power in the matter, and therefore as bad. The purchaser who, knowing that he is dealing with a guardian, chooses to ignore the provisions of the Act, has no one but himself to blame if he suffers from the consequences of his negligence.

7. As, however, the lower Court finds that the conduct of the purchaser was not dishonest, and that he paid a fair price, we shall declare that the plaintiff is entitled to be restored to possession with mesne profits on his repaying to the purchaser