Ramachandra Iyer, J.-

This appeal arises out of a suit instituted by the appellant for a declaration of his title to and recovery of possession of house No. 37, Saravana Perumal Mudali Street, Purasawalkam, Madras. The house was originally owned by two brothers, Sarangapani Pillai and Janakiram Pillai who constituted members of a joint Hindu family. The appellant is the son of Sarangapani Pillai. On 18th May, 1934, the latter on his behalf as well as that of his minor son, the appellant and along with Janakirama Pillai executed a simple mortgage of the house in favour of one C.V. Subramania Iyer (D.W. 1) for a sum of Rs. 1,000 stated to be borrowed for the marriage expenses of Janakirama Pillai and for effecting repairs to the house. Subsequent thereto, the same creditor appears to have advanced further sums on promissory notes, which need not, however, be referred to in detail as they were subsequently consolidated and two mortgages bearing dates 2nd September, 1937 and 21st January, 1938 (Exhibits B-5 and B-8), were executed over the same property for Rs. 500 and Rs. 200 in lieu thereof. By the year 1940 both Janakirama Pillai and Sarangapani Pillai had died. The latter was survived by his widow, the second respondent and the appellant his son who was then a minor. On 27th June, 1944, the second respondent acting as the guardian of the appellant, executed a deed of sale (Exhibit B-10) of the mortgaged property in favour of the first respondent for a sum of Rs. 5,500, Rs. 2,000 being reserved with the purchaser for discharging the three mortgages mentioned above. It was agreed that the balance of purchase money, viz., Rs. 3,500 was to be retained by the purchaser for the benefit of the appellant to be invested either by the purchaser or the guardian in proper securities, and that till then, the purchaser was to pay interest thereon at the rate of 6 per cent, per annum up to 31st December, 1944, and at 3 per cent, per annum thereafter. A charge over the property sold was also provided for the unpaid purchase money. The contemplated investment never fructified presumably because neither the second respondent nor the purchaser was able to find a suitable one. The interest on the amount is stated to have been regularly drawn by the second respondent. The sum of Rs. 3,500 was in the hands of the purchaser. The appellant attained the age of majority in 1952 ; shortly thereafter, he repudiated the alienation made by his mother, and instituted the suit, out of which this appeal arises, for the reliefs referred to earlier.

The suit was contested by the first respondent, the purchaser ; the second respondent who sold the property was ex parte. The learned City Civil Judge held that the alienation was made for proved necessity and also for the benefit of the appellant, and, as such, binding on him. The suit was dismissed.

The substantial question that arises in the appeal is whether the act of the guardian in selling the property could be justified.

The extent of the power of the guardian of a minor to alienate the property of the latter was laid down in the leading case of Hanooman Prasad v. Mussamat Baboyee1thus:

“The power of the manager of an infant heir to charge an estate not his own is under the Hindu Law a limited and qualified power. It can only be exercised rightly in case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it in the particular instance, is the thing to be regarded.”

Doubts arose as to whether the necessity and benefit referred to by their Lordships of the Privy Council as justifying a guardian’s alienation formed really one head or whether they were distinct heads.

In Vembu Iyer v. Srinivasa Iyengar2, Sundara Aiyar, J., dealing with the case of an alienation by a natural guardian held that the words need and benefit imported two distinct ideas. Necessity according to the learned Judge implied the warding off an evil or the doing o

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