Case: Sri Chandre Prabhuji Jain Temple And Ors Vs. Harikrishna And Another

AIR 1960 SC 1349 the question whether in such circumstances, a respondent who has not appealed from the decree can be allowed to urge such a plea in answer to a claim by an appellant for a further decree although the plea might imperil the decree already obtained was left undecided. But the Full Bench decision of the Madras H. C. in Venkata Rao v. Satyanarayanamurthy ILR (1944) Mad 147 = (AIR 1943 Mad 698 ) (FB) has held that it is open to a respondent who had not filed cross-objection with respect to the portion of the decree which had gone against him "to urge in" opposition to the appeal of the plaintiff, a contention which if accepted by the trial court would have necessitated the total dismissal of the suit" but that the decree in so far as it was against him would stand. The decree of the High Court here in so far as it held that the mortgage money can be recovered only from the half share in the properties was also a decree in favour of the respondents as it did not allow the claim of the appellants to recover it from the entire interest in the properties. To that extent, the respondents had a decree in their favour. That decree they could support on any of the grounds decided against them by the court which passed the decree. And when they do this, they are only supporting and not attacking that decree. We think that the rule laid down by the Madras High Court in the above decision is sound. And there is no reason why the respondents should be barred from urging the plea. So even though we hold that the power of Manorama as guardian to mortgage the properties extended to the entire interest in the properties, it would not follow that the appellants would be entitled to a decree charging the entire interest in the properties as the orders of sanction on the basis of which alone Manorama got the power to alienate the properties were invalid. 21.The position that emerges from this discussion is: under-the will Manorama had no power to alienate the properties. As the existence of the will and the curb on her powers of alienation were not disclosed to the court when she applied for sanction and as the court did not by order in writing remove the fetters on her power of alienation, the sanctions cannot be regarded as having been obtained under Section 28; nor could the sanctions, as they were given under Section 31 (2) on the applications filed under Section 29, be regarded as valid, as Section 29 has no application when there is a will appointing a person as guardian. 22. The question then is whether the appellants are entitled to get the money advanced under the mortgages as a charge on the entire interest in these properties. 23. The appellants advanced the amounts bona fide believing that there was necessity on the strength of the orders of sanction and there is no finding that there was no necessity. These orders were not void, even though they were obtained by fraud. That was the view of Balakrishna Ayyar, J. and it was on the basis that the orders were voidable and that, until set aside, they were valid, that the learned Judge granted a decree. A disposal of property in contravention of the provisions of Section 28 or Section 29 is only voidable (see Section 30). We think that there is no reason why, when in defence to the claim by the appellants for a decree charging the entire interest in the properties, in the appeal, the respondents should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minors interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, rule 33 of the Civil Procedure Code clothes the appellate court with the power to pass any decree or order which the trial court ought to have passed or made and to pass or make such further or other decree or order as the Justice of the case may require. 24. Though the respondents are entitled to avoid the orders of sanction in defence without the necessity of filing a suit, it is dust and proper that as a condition for doing so, they must give restitution. The High Courts in this country have taken the view, and we think rightly that as condition for setting aside a disposal of immovable property made in contravention of Sec. 28 or Sec. 29 which is voidable under Sec. 30, it is just that there must be restitution of the benefits received.(see Parshotam Das v. Nazir Hussain, 54 Ind Cas 846 = (AIR 1920 Oudh 53 (2) ); Peria Karuppan Chetty v. Kandasamy Chetty, 1933 Mad WN 791; Abbas Husain v. Kiran Shashi Devi, AIR 1942 Nag 12). 25. In this view, we do not think it necessary to express any opinion on the correctness or otherwise of the view of the High Court on the nature and effect of an order passed under Section 31(2). Suffice it to say that different views have been expressed by the High Courts.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19A. It is no doubt true that the respondents cannot be allowed to impugn the decree passed by the High Court in favour of the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not be allowed to urge the plea that the orders of sanction were invalid when the appellants want not only to maintain the decree passed by the High Court but also to get a decree charging the entire properties.In other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtains d by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea21.The position that emerges from this discussion is: under-the will Manorama had no power to alienate the properties. As the existence of the will and the curb on her powers of alienation were not disclosed to the court when she applied for sanction and as the court did not by order in writing remove the fetters on her power of alienation, the sanctions cannot be regarded as having been obtained under Section 28; nor could the sanctions, as they were given under Section 31 (2) on the applications filed under Section 29, be regarded as valid, as Section 29 has no application when there is a will appointing a person as guardianWe think that there is no reason why, when in defence to the claim by the appellants for a decree charging the entire interest in the properties, in the appeal, the respondents should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minors interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, rule 33 of the Civil Procedure Code clothes the appellate court with the power to pass any decree or order which the trial court ought to have passed or made and to pass or make such further or other decree or order as the Justice of the case may require24. Though the respondents are entitled to avoid the orders of sanction in defence without the necessity of filing a suit, it is dust and proper that as a condition for doing so, they must give restitution. The High Courts in this country have taken the view, and we think rightly that as condition for setting aside a disposal of immovable property made in contravention of Sec. 28 or Sec. 29 which is voidable under Sec. 30, it is just that there must be restitution of the benefits received25. In this view, we do not think it necessary to express any opinion on the correctness or otherwise of the view of the High Court on the nature and effect of an order passed under Section 31(2). Suffice it to say that different views have been expressed by the High Courts.