John Beaumont, Kt., C.J.
1. The question referred to a full bench is, 'whether it is competent to an adult coparcener of a Hindu Mitakshara family to appoint by will or otherwise a trustee, guardian or manager of the coparcenary property of a minor coparcener during his minority ?' The facts, which gave rise to the reference are that there was an adult member of a joint family, his coparcenary being a minor son and a minor nephew, and the question is whether on the death of the adult he. can appoint a guardian or manager of the coparcenary property. The question should, I think, be confined to the case of an only adult coparcener, because there could be no suggestion but that, if there were surviving adult coparceners, the deceased coparcener could not appoint a guardian of the joint property. The question has been referred to a full bench, because of a difference of opinion in this Court between the decision in Harilal Bapuji v. Bai Mani I.L.R(1905) 29 Bom. 351 : 7 Bom. L.R. 255 and Mahabkshvar Krishnappa v. Ramchandra Mangesh I.L.R. (1913) 38 Bom. 94 :15 Bom. L.R. 882. On principle the question would seem to admit of no doubt. It is of the essence of Hindu law in cases governed by the Mitakshara school, that on the death of one coparcener the joint property vests in the surviving coparceners, and the deceased coparcener has no interest in the property, and no power of disposition over it. If that is so, it is difficult to see on what principle he is to be at liberty to appoint somebody to manage the joint property. That was really the basis of the decision of this Court in Harilal Bapuji v. Bai Mani, where it was held that the adult member of a Mitakshara family could not appoint a guardian of the joint property on his death. It was also the basis of the decision of a full bench of the Madras High Court in Chidambara Pillai v. Rangasami Naicker I.L.R. (1918) Mad. 561. The latter case is really on all fours with the present case, because there the surviving members of the joint family were minor sons and nephews of the deceased coparcener. The view to the contrary, which prevailed in this Court in Mahableshvar Krishnappa v. Ramchandra Mangesh, was frankly based on convenience. The Court expressed the view that it was very convenient that on the death of a father leaving only minor members of the joint family of which he was a member, he should have a power to say who was to manage it during the minority ; and to meet this convenience the Court held that the father had the power. No doubt there is some force in the view that it would be a convenient power for the father to possess, but if the law is to be altered in order to meet the convenience of the public or any section of it, it is for the Legislature to make the alteration. The argument as to convenience, and the answer to it, were expressed very pithily by Mr. Justice Courts Trotter in Chidambara Pillai v. Rangasami Naicker, in language which I cannot hope to improve upon.' What he says is (p. 572) :-.his argument seemed to me to come merely to this. The thing is convenient, it is consonant with all right notions of what a father ought to be able to do for his children ; it is nowhere expressly prohibited; therefore it can be done. To me on the contrary it seems that to put a person in a definite legal relation to property of which he is not the owner is a step which cannot be taken unless there is legal authority for taking 'it. Its convenience and justice may be admirable reasons for the legislature to take action. They cannot in my opinion suffice to set in motion a court of law.
That seems to me to dispose of the case of Mahableshvar Krishnappa v. Ramchandra Mangesh, and apart from that case, there is really no authority in support of the contention that this power exists. Certainly there are some cases which deal with the right of a Hindu father to appoint a guardian of the person and property of his son, but we are not dealing here with a case of that nature. In my opinion, therefore, the question should be answered in the negative. We amend the question by substituting 'the only adult coparcener' for 'an adult coparcener.'
3. The question raised-and which we have slightly amended-is referred to this bench as there is some conflict of judicial opinion on it, not only in this Court but in the other High Courts. So far as our Court is concerned, two different views are expressed in Harilal Bapuji v. Bai Mani I.L.R. (1905) 29 Bom. 351 : 7 Bom. L.R. 255 and Mahableshvar Krishnappa v. Ramachandra I.L.R. (1913). 38 Bom. 94 :15 Bom. L.R. 882. In Harilal Bapuji v. Bai Mani it was held that a Hindu father who had a son living with him is not competent to appoint trustees to administer ancestral properties until the son should reach the age of twenty-one years, on the ground that at the moment of the testator's death the whole of the property was and became the property of the son by right of survivorship. In Mahableshvar v. Ramchandra it was held that a dying adult Hindu might appoint a manager and trustee for the minor members of the family without interfering with the succession to the family. In this case Sir Basil Scott C. J. went upon, firstly, the decision of the Privy Council in Raj Lukhee Dabea v. Gokool Chunder Chowdhury (1869) 13 M.I.A. 209, and, secondly, upon the ground of practical convenience. As regards the first point, it may be pointed out that the case of Raj Lukhee Dabea v. Gokool Chunder Chowdhury was under the Dayabhaga under which it is competent to a Hindu to dispose of the property even if he 'has a son. The law in this respect under the Mitakshara is different. As to the ground of practical convenience, all I need say is that it might well be left to the Legislature to-deal with. The only question before us is to see if there is any principle of Hindu law which would justify us in answering the question referred in the affirmative.
4. The question we have to answer arose in the full bench decision in Chidambara Pillai v. Rangasami Naicker I.L.R. (1918). Mad. 561, and the answer of the full, bench was that it was not competent to the only adult coparcener of a Mitakshara family consisting of himself and his minor coparceners to appoint a testamentary guardian of the coparcenary properties of the minor coparceners. The judgment proceeds upon the ground that as it is not competent to a Hindu to dispose of coparcenary property by will, he cannot make arrangements for the management of that property by will after his death or appoint a guardian to manage the property. It has been conceded by the learned counsel on behalf of the appellants that that case is on all fours with the present case.
5. It is said that there are no texts of Hindu law dealing with this question, and that, undoubtedly, is true. According to Manu, however, the duty of protecting the person and property of a minor vests in the Sovereign as parens patriae, and that duty is now discharged by the Courts.
6. Although there is no text of Hindu law which precisely deals with the question now raised, the principles of the law of joint family governed by the Mitakshara are too clear to give rise to any doubt as regards the answer to the question before us, and I can do no better than refer to a passage in Gharib-ul-lah v. Khalak Singh (1903) L.R. 30 IndAp 165 : 5 Bom. L.R. 478. This undoubtedly was a case under the Guardians and Wards Act, but, I think, what Sir Arthur Wilson said with regard to the principle underlying the system of joint family under the Mitakshara correctly embodies the spirit of the Hindu law on the subject. This is what his Lordship said (p. 170) :-
It has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family. And in their Lordships' opinion those decisions are clearly right, on the plain ground that the interest of a member of such a family is not individual property at all, and that, therefore, a guardian, if appointed, would have nothing to do with the family property.
7. In this view it is not necessary for me to refer to the various decisions to which our attention has been drawn by Mr. Coyajee, but as far as I can see, the balance of the authorities referred to by him is certainly against him, excepting the decisions in Soobah Doorgah Lal Jha v. Rajah Neelanund Singh (1867) 7 W.R. 74, Mahableshvar Krishnappa v. Ramchandra Mangesh I.L.R. (1913). 38 Bom. 94 : 15 Bom. L.R. 882 and Deba Nand v. Anandamani (1920) All. 213. In Soobah Doorgah Lal Jha v. Rajah Neelanund Singh, the question was disposed of on the mere ground that the appointment of a guardian was not shown to have been prohibited by any texts of Hindu law-a ground which, in my opinion, is not convincing. Apart from that, the case has, I think, been properly distinguished by Sheshagiri Aiyar J. in Chidambara Pillai v, Rangasami Naicker.
8. As to Deba Nand v. Anandamani, all I need say is that the full bench decision of the Madras High Court was not brought to the notice of the learned Judges of the High Court, nor were the two Bombay cases referred to. This has been pointed out in Venkatraman Mukund v. Janardhan Baburao I.L.R.(1927) 52 Bom. 16 : 29 Bom. L.R. 1522 by Marten C.J., who, it may be stated, seemed to favour the view which we are taking here. Finally, Mr. Coyajee relied on the referring judgment of Kumaraswami Sastriar J. in Chidambara Pillai v. Rangasami Naicker, but the view expressed by 4iim was negatived by the full bench.
9. For these reasons, I think the question must be answered in the negative.
10. I agree. Section 6 of the Guardians and Wards Act expressly saves, in the case of a minor who is not a European British subject, the power to appoint a guardian of his person or property or both which is valid by the law to which the minor is subject. In order to test whether there is a valid power given under the personal law of the minor, we have to look to the positive test as to whether it is expressly granted, and not whether it is not prohibited. Judged from that standpoint, the answer, in my opinion, to the question should be in the negative, because it is quite clear on the texts as well as authorities, and it is also conceded, that under the Mitakshara school of Hindu law in the case of a joint family with the incidence of survivorship, there is no such express power given to the only adult coparcener with regard to the appointment by a testamentary instrument either of trustees or of guardians of property of the minor coparceners as is sought for on behalf of the appellants. Therefore, the only test being whether there is such express power, any question of convenience or expediency would be irrelevant, and for this reason, I. think, the decision in Soobah Doorgah Lal Jha v. Rajah Neelanund Singh (1867) 7 W.R. 74 which proceeds on the ground that there is nothing in the Hindu law to prohibit such an appointment, and the decision in Mahableshvar Krishnappa v. Ramchandra Mangesh I.L.R. 27(1913) 38 Bom. 94 : 15 Bom. L.R. 882 which proceeds only on the ground of convenience, do not correctly lay down the law as it is, and that the decision of the full bench of the Madras High Court in Chidambara Pillai v. Rangasamy Naicker I.L.R.(1915) Mad. 561 follows the right principle to be applied to a case like the present one. I, therefore, agree that the answer to the question as amended should be in the negative.