Amberson Marten, Kt., C.J.
1. This is a suit by minors to set aside two deeds, Exhibits 85 and 86 of February 21, and June 25, 1921, executed by their father Mukund in favour of their cousin, Janardhan, defendant No. 1, who is a nephew of Mukund, Shortly stated these deeds are in the nature of management deeds both in the life-time of Mukund and after his death during the minority of. the minors. They also, taken together, confer a personal interest upon Janardhan, inasmuch as although he is to be under liability to account for the corpus, he is not to be liable to account for the income of the property, but is to pay certain expenses and a fixed sum as representing the balance during the minority of the minors. On Mukund's death the minors were young children, and approximately the deeds would operate for a term of some thirteen years. The points of law are whether Mukund had power thus to deal with the family property over this term of years, and in particular to make this provision as regards a fixed lump sum as being payable in lieu of the actual interest. Incidentally a question of law arises as to whether a Hindu father has any power at all to appoint guardians of the property, as opposed to the persons, of his minor sons after his death, whether by will or by deed inter vivos.
2. I do not propose to deal in any detail with these two deeds. It is sufficient for my purpose to state that at the date when they were executed Mukund had no adult son, but only two minor children besides some five ladies who were dependent on him, viz., his two wives, and a widow of a deceased son, and two daughters. Consequently Janardhan, defendant No. 1, was his nearest male relative and the person whom he naturally might look to for assistance. As regards the two wives, the elder, Janaki, defendant No. 2, had no children. The other one, Saraswati, the mother of the minors, was quite a young woman of about twenty-two or thereabouts. The learned trial Judge has formed a somewhat unfavourable opinion of the latter's business capacity and has drawn our express attention to the fact that her father was a man in embarrassed pecuniary circumstances. It is suggested that it is this father who is largely responsible for the present litigation. It also appears, as is recited in the documents, that Mukund at the time he made them, was in bad health, that he was no longer able to manage the properties himself, and that consequently he brought in his nephew Janardhan to assist him, It may be taken that Mukund was about sixty or sixty-one at the date of these deeds, and that he died in the following year, viz., in May 1922. We may also note in passing that in between these two deeds he executed a will on May 10, 1921, but, as the learned Judge points out, that does not affect the question before us.
3. I mention these facts as they are very naturally relied on as showing that the deeds which Mukund entered into represented a reasonable business arrangement which was one for the benefit of the family and the minors in particular. As regards the first deed, Exhibit 85, that was in the nature of a deed of management, and is called a trust deed or power of attorney. It says :- 'And you are fit to be accepted as my trustee or my constituted attorney. I have therefore accepted you as my legal constituted attorney to do the following things, viz., to carry on vahivat from this day on my behalf and on behalf of minors, of all my immoveable and moveable properties or estate and the outstandings mentioned below, excepting some properties kept with me which I shall dispose of in my life-time or only up to my death, and up to the time my said two sons come of age after my death, in case I die hereafter before the said two sons come of age.' Then it deals with the performance of certain religious ceremonies and making payments for the education of the sons. There are provisions for keeping accounts which are to be inspected by a panch and for cultivating the lands, and for paying certain sums for maintenance to the two wives, i. e. Rs. 24 to the senior wife and Rs. 75 to the junior wife for herself and her children, and certain other expenses, and that the balance should be invested in the manner therein mentioned, If the trust is not accepted, then there is to be no objection to the Court taking over the management. The deed then provides : 'And having appointed you to do the above things, I have this day given the whole of the estate into your possession.' Then it sets out the various particulars including moveables as well as immoveables.
4. It appears, however, from the next deed, Exhibit 86, that Janardhan was not willing to accept the obligations under the earlier document. In particular he objected to the provisions as to accounting for the income and so on. Consequent'y, the nature of the deed of management was altered in very material particulars by the second deed, Exhibit 86, which is headed : 'Chalgeni deed in respect of immoveable and moveable properties for a term of thirteen years, value in respect of this is Rs. 1,409-12-7, the assessment in respect of this should be paid by the owner only,' Then the document provides that Mukund gives this Chalgeni deed for a term of thirteen years as follows. The provisions which follow amount in effect to this. It is estimated that the profits or the income of the property will amount to roughly Rs. 1,409 a year. It is estimated that the expenses including maintenance etc., for the minors will amount to Rs. 808 a year. That leaves a balance of Rs. 600 odd. The deed accordingly provides that Janardhan is to invest this Rs. 600 in certain ways for the benefit of the minors, and that provided he thus disburses these two main sums, viz., Rs. SOS for the various expenses and Rs. 600 for the investments making together about Rs. 1,409 he can take the whole income of the property, whether more or less, and be under no liability to account for it. That is of course during the minority of the minors. The deed says, 'as only the income of lands and the interest due from others and rent from the date of the deed are included in this deed there is no need for keeping an account in respect of this, according to the conditions mentioned in the trust deed. Only you should keep an account in a proper manner, in respect of the principal amount if any (to) be received.... If any amount be expended for making special improvement for the cultivation of lands subsequently (in future) the amount should be taken from the amount belonging to the minors and an account should be kept in a proper manner.' Subject to that and certain other provisions the deed ends: 'As to all the particulars mentioned in the trust deed except only all the conditions mentioned in this deed, the same are kept alive and in this way the trust deed also is kept alive.'
5. I think it quite clear that these two documents must be read together. In fact Janardhan had refused to act under the first document, and he is only acting under the first deed as modified by the second. Further I think that the whole of the provisions must be taken together, and that it is not open to us to create a new bargain between the parties by eliminating all that is contained in the second deed about Janardhan taking the income for a fixed sum.
6. Now how are these very special provisions in the second deed to be justified One must remember that this being joint property the father's interest ceased at the date of his death. What right then had he to tie down the future income of the property in this way and to say that the estate which ho had no interest in after his death should only receive a particular fixed income although that income in fact might be very much larger What right had he to appoint a manager, a so-called trustee, who was to be under no liability to account for the trust property but was to be at liberty to put it into his own pocket What right had he to fix the maintenance of the widows at certain sums whether they liked it or whether they did not What right had he to fix the maintenance of the minors at certain sums What right had he to direct the investment of the balance of Rs. 660 in various ways which are certainly not trust investments, including deposit 'in a society,' and including as, I read the deed, a power for the sole manager Janardhan to keep the money on deposit with himself on payment of interest at 6 per cent And what security would there be that at the end, say of the thirteen years, Janardhan* would be in a financial position to refund these various sums which would be due from him under this deed ?
7. As my brother Crump has put it, we may test this matter in three or four different ways. Was it a power of attorney as Mukund calls it That surely will not suffice. What right had Mukund to give any power of attorney existing after his death Was it a trust deed, the alternative name given to the first deed The answer to that is, what power had Mukund to create a trust after his own death, of property which after his own death did not belong to him Then it is argued, treat it as an alienation, treat it as a transfer. But in the first place was there here really a transfer within the meaning of the Transfer of Property Act Was there a conveyance to this defendant, Janardhan Even supposing that in some ways it can be looked upon as an alienation, then what power had the father to enter into this very extraordinary alienation You cannot call it a sale. You cannot call it a mortgage or a charge or a lease in the ordinary acceptation of those terms, more especially as it is muddled up with moveable properties including pots and pans, Can one say the relationship of landlord and tenant for instance was established here And if one does regard it as an alienation, how can it be justified? By necessity? Necessity in the ordinary acceptation of the word, certainly there was none here. Granting the conditions which 1 have already stated, if protection of the minors' property was wanted, there are provisions under the Guardians and Wards Act for the appointment of guardians which should meet what was requisite. But there is no statutory power given. to a Hindu father to tie up his property in this sort of way, for what he conceives to be the benefit of his children. And incidentally I may observe that if this deed was a valid deed, then it would seem to stand in the way of any appointment of a guardian under the Guardians and Wards Act. The deed is either a valid appointment of a guardian or it is not. If it is a valid appointment of a guardian, then I take it that under Sections 7(3) and 89 Janardhan could only be removed on certain specified grounds, such as misconduct and so on.
8. We were referred to certain authorities. It was argued that a father's powers of alienation are not confined to cases of necessity, but may extend to cases of mere benefit. We are not called on in this case to review the well-established conditions laid down by the authorities as regards the powers of a Hindu father to alienate. We have the well-known case, Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 M.I.A. 393, which has often been dealt with and particularly in recent years in Palaniappa Chetty v. Deivasikamony Pandara. 19 Bom. L.R. 567 The commentary in Mayne's Hindu Law, 9th Edition at p. 476 is as follows :-
Ever since this important judgment was pronounced, the terms ' necessity' and ' benefit to the estate' have been used side by side. It is obvious that anything which is a necessity to the estate must be of benefit to it. But the term ' benefit' would seem to import something positive done to enlarge or improve the estate, not a merely negative act such as the discharge of debts or the averting of disaster.
9. A reference is then made to the judgment of their Lordships of the Privy Council in Palaniappa Chetty's case including a citation of the following passage (p. 477):
No authority has been cited for giving any countenance to the notion that a shebait is entitled to sell debollar lands solely for the purpose of so investing the price of it as to bring in an income larger than that derived from the probably safer and certainly more stable property, the debottar land itself.
10. In Vishnu v. Ramchandra : AIR1923Bom453 , a decision of Sir Norman Macleod and Mr. Justice Crump, the above case of Palaniappa Chetty v. Deivasikamony Pandara was followed and applied. The headnote runs :-
The manager of a joint Hindu family can justify the sale of joint family property only for necessity. He cannot justify it merely on the ground that the sale at the time appeared to be advantageous. Such a sale is not binding on the minor coparceners.
11. The learned pleader for the respondent No. 1, being pressed by these authorities, felt a difficulty in maintaining that a sale could be justified merely on the ground of some general benefit apart altogether from necessity. But he contended that this was not the case of a sale, that it was not the case of property passing for good out of the possession of the family; and that it was at the most something in the nature of a lease. In that respect another decision by the Board in Abhiram Goswami v. Shyama Charan Nandi I.L.R. (1909) 36 Cal. 1003, 11 Bom. L.R. 1234 was referred to. There at page 1013 it is stated :-
The second question is whether, this being so, the Mohant had power to grant a mokurari pattah of the mouzah. It is well settled law that the power of the Mohant to alienate debuttar property is, like the power of the Manager for an infant heir, limited to cases of unavoidable necessity : Prosunno Kumari Debya v. Golab Chand Baboo (1875) 14 Beng. L.R. 450,L.R. 2 I.A. 145.
12. Then after referring to a particular case where the grant was upheld because the money was required for repairs for the temple their Lordships proceed (p. 1018):-
But the general rule is that laid down in the case of Maharanee Shibessouree Debia v. Mothooranath Acharjo (1869) 13 M.I.A. 270a that, apart from such necessity 'to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time, would be a breach of duty' in the Mohant.
13. I appreciate that what is put there is for all time-something in the nature of a perpetual lease-whereas here it is a question of only some thirteen years. But in my opinion the respondents have failed to satisfy me that there is any such genera] power in a Hindu father as is contended for here, i. e. to alienate lands in any way he likes for anything that may be of general benefit to the family, whether or no there is any 'necessity,' so far as that expression has hitherto been interpreted.
14. Even if it cornea to the question of benefit, I am not satisfied on the facts of the present case that the respondents have discharged the onus which undoubtedly lies upon them in this respect. Treating it as an alienation Janardhan was taking the family property for a particular fixed sum over a term of years. Prima facie it would lie on him to justify that alienation. But when we turn to the evidence 1 find it most difficult, speaking for myself, to get any clear idea as to whether the fixed sum arranged by Mukund was realty a fair sum to fix. Janardhan himself says he knew nothing whatever about the rents of the property prior to the date of the lease. He did not enquire, he only asked whether the rent fixed was a fair one, and being informed that it was, he signed the deed. He does not even tell us of whom he enquired or who told him it was fair.
15. It is argued that presumbly the father in the interests of his own children would bo sure to fix a fair rent, and that we must therefore presume that the rents were fair. But I am not prepared to go to that length. It might amount to this, that every time a father sells or leases, it must be assumed prima favie that the transaction was a fair one from a pecuniary point of view. In other words the onus in that case will be shifted from the person on whom in my opinion it properly falls, viz., the alienee. It must also be noticed here that there are passages in Janardhan's own evidence which seem to point to the fact that he was getting the property at a reduced rent. I may also notice this, that apart from this question of a fixed sum, he was in addition to be paid a remuneration of Rs. 180 per annum. This was the remuneration he got under the earlier deed. He was still to retain it under the second deed although he was presumbly getting some benefit by paying a fixed sum for the income of the lands.
16. It would not be right of me to dispose of this case without referring to the second point of law and to the cases decided upon it, viz., whether in general a Hindu father has power to appoint a testamentary guardian of property by will. In that respect no doubt there is a conflict of authority. And I can quite appreciate that the learned trial Judge felt himself embarrassed by this. I can also understand his view that in these circumstances he thought it his duty to follow the latest decision in this Court in preference to an earlier decision of this Court the other way and in preference to a Full Bench decision of the Madras High Court. The earlier decision in this Court, Harilal Bapuji v. Bai Mani I.L.R (1905) 29 Bom. 351 7 Bom. L.R. 255, was a decision of Mr. Justice Russell and Mr. Justice Aston, There the father made a will appointing his son as heir to the whole property which was ancestral. He also appointed trustees to administer the property till his son should attain twenty-one with power to the trustees to take possession. He also gave the trustees power to sell any part of the property and to purchase new property. It was held that the appointment of a trustee was void since at the moment of the testator's death the whole of the property became the property of the son. Further, that no trust was created by the will because the property in question was not one transferable to the beneficiary.
17. In Mahableshvar Krishnappa v. Ramchandra Mangesh I.L.R. (1913) 38 Bom 94 15 Bom. L.R. 882, which was a decision of Sir Basil Scott and Mr. Justice Beaman, the manager of a joint Hindu family executed a mukhtiarnama providing for the management of the family estate including settlement of money debts and pecuniary claims both during his life-time and after his death. The mukhtiar was empowered to manage the estate as he thought fit. The Court there held that the power to manage implied the power to sell, that it was binding on the minors and that the sale could not be treated as a nullity inasmuch as a dying adult Hindu might appoint a manager and trustee without interfering with the succession to the property. The judgment of the Bench was largely put upon this that it was a matter of great practical convenience that a Hindu father should have such a power. It is said (p. 103):-
In a family consisting in other respects of minors and women it is a matter of practical convenience that the dying adult male should be able to make arrangements for guardianship and management, otherwise a deadlock and loss would be arrived at through various widows quarrelling among them selves.
18. In Chidambara Pillai v. Rangasami Naicker (1917) 41 Mad 561 a Full Bench of that High Court considered the matter, and the finding was that the only adult coparcener of a Mitakshara family consisting of himself and his minor coparceners is not competent to appoint a testamentary guardian to the coparcenar properties of the minor coparceners. Mr. Justice Ayling, in delivering the first judgment, agrees with the observations of Mr. Justice Sadasiva Ayyar in an earlier case in which that learned Judge said (p. 570:-
On principle I find it difficult to hold that a man who cannot deal with a particular species of property by will can make arrangements for the management of that property by will after his death or can appoint guardians to manage that property fur minor owners who obtain it by survivorship after his death.
19. There Mr. Justice Coutts-Trotter, as ha then was, says (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.
20. The remaining Judge, Mr, Justice Seshagiri Ayyar deals in some detail with the previous authorities on the point, and in the result arrives at the same conclusion.
21. There is one other case in Deba Nand v. Anandmani I.L.R. (1920) 43 All. 213, which is a decision of Sir Grimwood Mears and Mr. Justice Sulaiman. The head note runs :
A Hindu father can by word or writing nominate a guardian for his children, the nomination taking effect after his death. He is unrestricted in the choice of a guardian, and may exclude even the mother from the guardianship.
22. But although this case was argued in August 1920 whereas the Madras Full Bench decision had been argued in 1917 and in 1918 it does not appear that the latter was brought to the attention of their Lordships. Nor is there any reference in the judgment to the two Bombay cases which I have referred to.
23. Reliance was also placed on the Calcutta case, Soobah Doorgah Lal Jha v. Rajah Neelanund Singh (1867) 7 W.R. 74, but speaking for myself, I hardly view it as a cogent authority in favour of the respondents, for at the most it amounts to this that it is not shown that the appointment of a guardian is prohibited by Hindu law, I would rather say that if this important power is to exist in a Mitakshara family, then one would want positive evidence of the existence of the power rather than some negative statement that it is not prohibited.
24. If this had been a simple case of appointing a testamentary guardian of property, then it may well be that having regard to he conflict of authority both in our own Court and between other High Courts, it would be proper to send the case to a Full Bench. But in the view I take there is a very marked difference in this case from any other which has been cited to us. I refer to the provision in the second deed that the alleged guardian is not to be liable to account, and that he is to take the produce of the property for his own benefit paying yearly a fixed sum for it, That to my mind goes far beyond anything that was held justified in Mahableshwar Krishnappa v. Ramchandra Mangesh or for the matter of that, in any of the other cases that have been cited to us. Accordingly I think we can dispose of this case on its own facts by saying that in any event the deeds here, when considered together, went far beyond the powers of a Hindu father in a Mitakshara family. Whether in any event a father could appoint a testamentary guardian of property at all, must, as I have already, indicated, be regarded as open to grave doubt having regard to the authorities which I have cited.
25. I will only add a reference to the argument that the documents here were deeds inter vivos and not a will. To my mind that makes little or no difference. If a man purports to dispose of property after his death, in substance it is a will, whether you call it a deed or whether you call it a will. If you treat it as a conveyance or alienation inter vivos, then he is still purporting to deal with an interest in the property after his death. One has then to see whether he has any power to make a settlement inter vivos of that nature. I take it then that practically the same principles would apply, bearing in mind that he is purporting to operate on property-at any rate in part-as from the date of his own death, when ex hypothesi he no longer has any interest left in that property. In the present case, therefore, Mukund had no interest in the property after his death which he could vest in the trustees of any settlement, whether that settlement was made by deed or by will.
26. There were other allegations in the case, allegations which ought not to have been made, charging Janardhan with fraud and undue influence. Those allegations were held by the trial Judge to be quite unfounded, and I respectfully agree with what the trial Judge said in that respect. But on the main part of the case as to whether these deeds can be upheld, in my judgment they cannot. They are accordingly voidable at the suit of the minors, and therefore in my judgment they must be cancelled and set aside as from the death of Mukund. It follows that Janardhan will have to account as from the death of Mukund. The appeal must, therefore, be allowed.
27. As regards the costs, I would say this. It was put to us that Janardhan had no personal interest in this matter, but was merely contesting this litigation because of his uncle's wishes. But that argument overlooks the fact that Janardhan took a personal pecuniary interest under this document, because he was getting the income at a fixed sum. Further he has chosen to stand by that document and to put in a defence raising every possible objection. Having eventually failed, I think he must be treated as any ordinary litigant who puts forward a document under which he claims a personal interest. It is not, therefore, a case where an absolute owner of property has caused confusion by making an ' ambiguous will, under which circumstances it may be only right that as he has caused the trouble, therefore the costs should come out of his estate. On the other hand I recognises that there are these charges of fraud and undue influence on which Janardhan has succeeded. On the whole, therefore, I would hold that the fair order is that he do bear his own costs in both Courts and that the costs of the minors come out of the estate.
28. I will conclude with saying this. We quite appreciate the warning that the learned trial Judge who has had the advantage of seeing the witnesses, has given us. He has intimated in clear terms that an undesirable person is at the bottom of this litigation, and that consequently if the deeds are set; aside the result may be that the property of the minors will Buffer. We think, therefore, this is a case where the question of the appointment of a guardian under the Guardians and Wards Act should be carefully considered by the Court; and further that the case is one where we may suggest for the consideration of the Collector whether he should not apply under the Guardians and Wards Act for a guardian to be appointed. So long as Janardhan has to account in this suit for the property and income he has received, I see difficulties in appointing him guardian of the property of the minors. But apart from that point, speaking for myself, I see nothing in this case which would in any way prevent him from being appointed by the Court to be guardian of the property of the minors, if the Court after considering all the facts came to the conclusion that that was in the interest of the minor. But while he has to account in this suit, as I have already said, there is a technical and practical difficulty in appointing him guardian. I would accordingiy direct that the appeal be allowed and that consequential relief be granted in the manner I have indicated.
29. I entirely agree with the judgment pronounced by the learned Chief Justice, and in view of the fact that every point in the case has been fully covered, I do not desire to pronounce a separate judgment beyond expressing my concurrence.
30. Appeal allowed. Deeds to be cancelled and set aside as from the death of Mukund. Account to be taken of all property and the income thereof as from the date of death of Mukund. As regards possession Mr. Nilkant says that his client, respondent No. 1, is willing to give up possession at once, but the question arises as to whom the possession should be given pending any application for the appointment of a guardian of the property under the Guardians and Wards Act. On the whole we think that the best solution is to appoint the Nazir of the First Class Subordinate Judge's Court (at Karwar) to be the Receiver of the property until the termination of the suit or until further order with liberty to apply. The order will provide for possession being eventually given to the guardian appointed under the Guardians and Wards Act.
31. We hope that matters will so arrange themselves that a proper guardian will be appointed, and accordingly any difficulty will be got over. If any difficulty remains, the parties will apply to the trial Court.
32. The respondent No. 1 is to bear his own costs in both Courts and the costs of the minors are to come out of the estate.
33. Copy of our decree will be sent to the Collector under Order XXXIII, Rule 14, in relation to pauper suits, and also with reference to our recommendations in regard to an appointment under the Guardians and Wards Act.