SRI CHANDRE PRABHUJI JAIN TEMPLE AND ORS. versus HARIKRISHNA AND ANOTHER

Citation: [1974] 1 S.C.R. 442 · Decided: 22-08-1973 · Supreme Court of India · Bench: KUTTYIL KURIEN MATHEW · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

44.2 
SRI CHANDRE PRABHUJI JAIN TEMPLE AND ORS. 
v. 
HARIKRISHNA AND ANOTHER 
August 22, 1973 
LK. K. MATHEW AND M. H. BEG, JJ.] 
Guurtlians and Wards Act 1890--S. 29 read 1ri1(1 ~·. 31 (2)-Widow morl_flaged 
~roperty of minors wil}t permission from Court without disclosing exiJtCitce of 
4 will-Whether maJOrs' estate liable. 
One R. died in 1941, leaving behind him his wiLlow, one minor son and 
lwo minor daughters, Before he died, he had executed a will whereby be 
.appointed his widow the executor of the will and the guardian of his minor 
son .and daughters and bequeathed all his properties to the -minor son with 
directions as regards maintenance and marriage of his daughters. 
fn 1948, the 
widow mortgaged certain properties to raise a loan of Rs. 7,000 !· for the 
UO!"Jli:>!Jdde uc PJIY JqS 
·JJJI{8nup .1;,pp JJq JO SJsuJdxJ Jl111!JJew JO ?>OdJnd 
~OOlfHh\ lJV spJllA\ 
puc SUU!Plll09 
Jql JO or pun L ·ss lJpun lJ;)_lP ~!4l OJ 
disclosing anything about the will. 
The Court passed an order appointing· the widow as the £uardiun of the 
.Personal property of the minor and son and daughter and by another order. 
granted her Permission to raise the said loan. Accordingly, she borrowed 
Rs. 7.000/- by mort1:aging the houses. 
Thereafter, in 1950. she filed twa 
.applications seeking permission of the High Court to raise a loan of Rs. 40,000/· 
.and Rs. 15.000/. on the security of the two houses. She was allowed to 
raise Rs. 30.000/· and Rs. 10,000/· respectively by mortgaging the houses. 
Thereafter. the widow filed 
another application praying for permission to sell 
.one of the houses in on.kr to discharge the ag10unt due to the 
api>ell<~nts 
.under the two mortgages. The permission was granted and the Indian Bank 
Ltd. ourchased one of the house properties fot Rs. 41,500 f·. Subsequently. 
the Bank came to know that R. had executed a will and the Bank applied 
to the High Court to have the sale set aside. 
This was done. 
When the 
existence of the will was brought to the notice of the Court, the High Court 
-directed the Administrator General to take immediate possession of R:s estatl' 
and to apply for letters of administration. 
The Administrator General obtained 
letters of administration and took possession of the estate. In the course of 
administration. the AG. after obtaining the sanction of the Court, put Up for 
~e one of the houses in question. 
The Jndian Bank purchased it for 
Rs. 39,200 /·· The sale proceeds are being retained by the A.G. 
The appellant~ thereafter, filed a suit before the High Court to recover 
the money given under the two mortgages executed in favour of the appellants 
.oy the widow as the guardian. 
B 
c 
D 
E 
F 
The respondent 
namely, 
the Administrator General 
and the minor son 
contended that the widow had no authority to execute the mortgages and that 
-she obtained the sanctions of the Court to execute the mortgages by prac:isin~ 
G 
Traud etc. 
The High Court held that sina the appellants were not parties to 
the fraud and as they are not required to go beyond the orders, the appellant& 
·were entitled· to recover the amounts from the properties mortgaged and . passed 
:a preliminary decree. 
Against this decree. the respondents appealed to a Full Bench. 
The Full 
'Bench held that an order under s. 31 (ii) of the Guardians and Wards Act. 
1890 can be relied ton by an alienee and is a substitute for an honest enquiry 
H 
·to be made by him. The Court passed a decree for recovery of the amounts 
from one half of the properties 
mortgaged. It is against this decree that 
·this appeal by certificate, has been preferred. Jn this Court, the following 
:points were raised by the appellants : 
A 
8 
c 
D 
E 
G 
JAIN TEMPLl! V. HARIKRISHNA 
4!3 
(i) That the fiading .of the ~igh Court tha~ the' mortgages werf valid only 
in respect of one ~aJf mterest tn the properties was not correct. 
Accordi'Dg 
to the appellants,. smc~. the widow was appointed guardian in respect of the 
.person and .the. properttes ?f her minor son. and the fact "that the widow stated 
tn the apphcat~on to appotnt her a guardian. that she was entitled to one half 
of ·t~e properttes, and the .IJ!ioor to. ~be ot}}er hall would not conclude the 
questto~ that she was appomted guardtan only in respect of half shar~ of the 
properties. 
(i~) That under th.e Act or un~er the inherent powers of the Court, a 
guardtllll can be appotnled only wtth respect to all the properties of th¢ minor 
· and not in respect.

Excerpt shown. Read the full judgment & AI analysis in Lexace.