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Judgment
The Lower Appellate Court decided against the validity of the alienations to defendants 3 and 4 on the ground,
(1) that they were made by the 1st defendant who was the de facto guardian of the minor, her adopted son, at a time when there was a
testamentary guardian who had been appointed under the will of the widow''s husband.
(2) that the alienees had failed to show that the alienations were necessary in the interest of the minor.
As regards the 1st ground it is well settled that an alienation may be validly made by a de facto guardian (assuming, of course, the necessity). In
the present case, the 1st defendant, as the minor''s mother, was his natural guardian. The evidence shows that the testamentary guardian, the
plaintiff''s father, (2nd defendant), acquiesced in the alienations made by the 1st defendant, and that he assisted her in the management of the
estate. In our judgment the fact that at the time the alienations were made by the 1st defendant, the 2nd defendant had been appointed
testamentary guardian is no ground for holding that it was competent for the 1st defendant to make the alienations.
As regards the question of necessity, the documentary evidence shows that the alienations were made in part for the purpose of discharging a
liability incurred by the husband of the 1st defendant and in part in connection with litigation in which the question of the validity of the minor''s
adoption was involved
No doubt the alienees were near relatives of the 1st defendant but there is nothing to suggest that in making the alienations to them she was
acting otherwise than in the interest of the minor''s estate.
We think the evidence shows the necessity for the alienations, and we accordingly allow the appeal of the 3rd and 4th defendants, and restore
the Munsif''s decree.
The plaintiff must pay the costs of these defendants, here and in the Lower Appellate Court.