1. Plaintiff is the appellant. He brought this suit for recovery of ancestral property that had come into possession of his step-mother's brothers' families through her will, dated 9th December, 1903. The plaintiff's father died on 30th July, 1900, while plaintiff was a minor. The plaintiff's mother, Nachiar Ammal, was his father's junior wife and Chinnappen Janaki was the name of the senior wife. The 1st defendant and the 3rd defendant's husband are brothers of Chinnappen Janaki, the plaintiff's step-mother. The 2nd defendant is the 1st defendant's son. On 23rd July, 1900, the plaintiff's father executed a written will appointing his junior wife Nachiar Ammal, his sister Alagu Janaki and his aunt's son Ranga Aiyangar as managers of his properties after his death and guardians of the minor plaintiff. In case of difference of opinion among them the decision of Nachiar Ammal was to be final. There was a bequest of 1 acre 63 cents in favour of Ranga Aiyangar and there was also a provision of 6 kottas of paddy and Rs. 25 cash per year for the maintenance of the testator's first wife, Chinnappen Janaki, with the provision, that if she did not accept this allotment, she should have Rs. 1,200 down in cash. The plaintiff's first witness, who is a purohit and also a paternal relation of the plaintiff, deposed that after the plaintiff's father died, Chinnappen Janaki and her brother came and obstructed the performance of the funeral ceremonies and refused to let the corpse be removed from the house until she was given some lands for maintenance in lieu of the paddy and cash provided in the will. This evidence as to coercion of the plaintiff's guardian given by this witness was not rebutted by anything for defendants. On 4th August, 1900, the three guardians appointed under the will entered into an agreement, in which Chinnappen Janaki joined (Ex. 11), which contains a statement that the plaintiff's father on his death-bed revoked his written will and orally directed that nanja lands worth Rs. 2,000 and Rs. 1,200 in gash for providing a residence and other nanja lands specified in the schedule in lieu of the sum of Rs. 1,200 should be given to Chinnappen Janaki for maintenance with all rights of disposal. After this the senior widow Chinnappen Janaki brought a suit (O.S. No. 150 of 1902) for a declaration of her right and for transfer of the patta belonging to the pro-perties allotted to her and obtained a decree ex parte as the plaintiff's guardians did not defend it. The plaintiff's stepmother died on 28th December, 1903, after willing away the property in favour of her brothers. Now plaintiff has come of age and sues for recovery of the joint family property which has been improperly alienated. In the Lower Court his suit was dismissed.
2. The written will of the plaintiff's father was clearly invalid in so far as it purported to dispose by will of joint family property [vide Subbarami Reddi v. Ramamma ILR (1920) M 824; and the appointment under it of testamentary guardians to manage the properties of the plaintiff (a minor coparcener) was also illegal [vide Chidambaram Pillaiv Rangsaswami Naicker ILR (1917) M 561. The alleged oral will, even if true, was also invalid for the same reason that the plaintiff's father had no power to dispose of immoveable property belonging to the joint family after his death.
3. The learned Subordinate Judge found under Issue VI(a) that the properties covered by Ex. II are joint family properties and! this finding has not been challenged. He upheld the alienation under Ex. II both as being a proper provision for maintenance and as being a family settlement of a disputed claim.
4. The appellant's pleader argues that the plaintiff's mother, acting as his natural guardian, had no power to delegate her authority by taking in two other persons to act with her. If she acted bona fide in the capacity of the natural guardian of her son, I should not be inclined to hold that any disposition made by her was invalid for the mere reason that other persons, who were not authorised to deal with the property, joined in the transaction, but the more important question to be decided is whether the alienation of joint family properties can be justified under the circumstances of this case. Regarding it as an act of a guardian of a minor, against whom a claim for maintenance had been preferred, was it a prudent act to buy off an uncertain claim for future maintenance for life by making a gift of ancestral property in perpetuity? Chinnappen Janaki might have died immediately after receiving the gift ; in fact, she lived only for three years more, by which time she had parted with her right in the property. Prima facie I consider that it was a breach of trust on the part of the plaintiff's guardian to make permanent alienations of immoveable property for the purpose of providing for the maintenance of a person who was only entitled, to be maintained for her lifetime according to the Hindu Law. In Lewin's Law of Trusts, 12th Edition, page 710 the general principle is stated to be that, if a trustee does without suit what would have been ordered by the Court and what is compellable by suit his act is valid. If the plaintiff's mother had been appointed guardian by the Court under the Guardians and Wards Act, she would have had to apply under Section 34, Clause (e) for appropriating such portion of the income of the ward's property as the Court might direct towards the maintenance of the persons dependent on him. She would have had no power to transfer any part of the immoveable property without the previous permission of the Court (vide Section 29), and no Court would have given permission for a permanent transfer of immoveable property without the strongest reasons being forthcoming. The obligation of the minor to maintain his father's senior widow was only co-extensive with the widow's lifetime, and the power of the guardian to alienate the family property must also be regarded as co-extensive with that obligation.
5. It is argued that the plaintiff's guardians' act can be justified as having saved the plaintiff from being sued for maintenance. As a matter of fact it did not prevent the senior widow from afterwards suing the plaintiff, and if no provision had been made such as that contained in Ex. II and if the widow had sued for maintenance, it is impossible to believe that any Court would have decreed a permanent transfer of ancestral properties to meet a claim for maintenance for life.
6. In my judgment, therefore, the permanent alienation made under Ex. II was wholly unjustifiable and must now be set aside. The action of the plaintiff's guardians in not defending O.S. No. 150 of 1902 must, in this view of the case, be regarded as grossly negligent.
7. The appeal is, therefore, allowed and the plaintiff will be given a decree as prayed for in his plaint except as to his claim for mesne profits from 20th December, 1903, As regards mesne profits, the alienation by the plaintiff's guardian being voidable, as explained in Bhirgu Nath Chaube v. Narsingh Tiwari ILR (1916) A 61 and Suhba Goundan v. Krishnamachari ILR (1921) M 449 and not having been repudiated before the institution of this suit, I agree with my learned brother in thinking that the plaintiff is entitled to mesne profits at the rate found by the Lower Count to be fair from the date of suit only and the decree will provide accordingly. The decision in SarajRanjan Choudhry v. Premchand Choudhry 22 CWN 263 to which our attention was drawn at the eleventh hour is not in point. There is no doubt that a plaintiff could not under any circumstances recover mesne profits for more than three years before suit as that remedy would be barred by Article 109, Limitation Act. That is all that the case is an authority for. As each side has succeeded in part, each will bear his own costs in the appeal.
8. I agree. My learned brother has dealt with the reasons why the first ground on which the learned Subordinate Judge supported this claim, namely, that it was a proper provision for maintenance, cannot be supported. I am also of opinion that the second ground, namely, that it was a family settlement, or, as it was well stated, as being the price of family peace, equally cannot be supported. That the senior widow had a claim for maintenance is of course not disputed. The only question was as to its quantum ; and, in my opinion, it cannot be said that it was a bona fide buying off of a settlement of family dispute when that was the only question.
9. After our judgment in this appeal had been pronounced, a discussion arose regarding the mesne profits which ought to be allowed to the plaintiff who has succeeded in the appeal before us.
10. It is contended for the appellant that mesne profits should be allowed from the date of the alienation by the plaintiff's guardian which we have held in our judgment to be wholly unjustifiable and have accordingly set aside. On the other hand, the respondent contends that the alienation being only voidable and not void, mesne profits can only be awarded from the date when the alienation is set aside, i.e., by reference back, to the date of the plaint. The question therefore arises as to whether the alienation evidenced by Ex. 11 is void ab initio or only voidable. There is no doubt on the authorities that the alienation by a Hindu widow of her husband's estate as against a reversioner is good until the sale is set aside. For instance, in Rangaswami Goundan v. Nachiappa Goundan ILR (1918) M 523 it was held that ' when the alienation of the whole or part of the estate is to be supported on the ground of necessity, the consent of such reversioners as might fairly be expected to be interested to quarrel with the transaction, will be held to afford a presumptive proof which, if not rebutted by contrary proof, will validate the transaction as a right and proper one.' See also Bijoy Gopal Mukerji v. Krishna Mahishi Debi ILR (1907) C 329 : 17 MLJ 154 where their Lordships say referring to the alienation of the Hindu widow : ' Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. ' That being the state of the law with regard to the alienation of a deceased husband's estate by a Hindu widow, does it make any difference if the alienation is not by a Hindu widow as such but by her as guardian for her minor son who takes it as the estate of the deceased father Apparently there is no difference in principle and it has been held by the Calcutta High Court in Krishna Dhone v. Bhagaban Chandra (1916) 34 IC 188 that a sale of a minor's property in fraud of his rights is only voidable and is valid till avoided. After the argument was concluded we were referred by Mr. Bhashyam to a statement in Saraj Ranjan Choudhry v. Premchand Choudhry 22 CWN 263. That was a case of limitation, where the question arose whether Article 109 of the Limitation Act was applicable to a suit for mesne profits where possession had been obtained by the defendant under a sale subsequently set aside. The appeal was originally heard by Doss and Richardson, JJ., who differed in opinion. Doss, J., at page 267 says: 'It is only when the sale is finally set aside by a suit or the decree is finally reversed on appeal that the possession by virtue of the ultimate judicial declaration becomes wrongful, not merely from the time when such declaration is pronounced but ab initio, i.e., from the time the unsuccessful party or the purchaser was installed into possession,' and he held that the plaintiff could recover mesne profits for the whole time during which the defendant had been in possession. Richardson, J., differed holding that the claim for mesne profits for more than three years before suit was barred. On the hearing of the Letters Patent Appeal by three Judges, the opinion of Richardson, J., prevailed. If therefore the dictum of Doss J., is treated as applicable to the facts of the present case, of which I am not convinced, it would appear to have been overruled. In Subba Goundan v. Krishnamachari ILR (1921) M 449 there was a suit instituted by the co-parceners to set aside a sale of ancestral immoveable property by the Manager on the ground that the sale was not for family necessity. Here again it was said by the learned Judges (Kumaraswami Sastri and Devadoss, JJ.) that in the case of sales by a father or managing member of a joint family for alleged necessity the sale will be good till avoided as it is open to the other coparceners to affirm the transaction. The learned Judges there followed the ruling in Bhirgu Nath Chaube v. Narsingh Tiwari ILR (1916) A 61 and limited the claim for mesne profits to the period from the date of suit as there was no repudiation before the suit. I do not think that the fact that the plaintiff could not, until he had attained majority, elect to either affirm or disaffirm the transaction can make any difference in principle. By reason of his disability the law gives him no title to assert his legal rights until his disability is at an end. The learned vakil for the plaintiff referred to a decision of the Privy Council in Bhagwat Dayal Singh v. Debt Dayal Sahu ILR (1908) C 420 : 18 MLJ 100 but nothing can be gleaned from the judgment of their Lordships of the Privy Council in that case as to the period for which mesne profits should be allowed. Their Lordships held that as the sale deeds in question were invalid as such, the claim for mesne profits was well founded and the amount would be as ascertained in execution proceedings. The decision, therefore, does not affect the present case. On these considerations and on the state of the authorities, I am of opinion that in this case the mesne profits should be allowed from the date of suit and I would direct accordingly.