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Sithalingachetti Minor by His Next Friend and Mother Alamelu Ammal Vs. Ardhanari Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported in(1939)1MLJ745
AppellantSithalingachetti Minor by His Next Friend and Mother Alamelu Ammal
RespondentArdhanari Chetti and ors.
Cases Referred and Peer Mohideen Rowther v. Aisa Bivi
Excerpt:
- - sinnia chetti appears to have been then asked by the other members of his family as well as that of the widow's to take charge of the properties left by palaniswarhi and look after the existing daughter, the widow and the child when born' (ex. i trevelyan in his well-known work on minors expresses his opinion at page 170 (5th edition) that a guardian was entitled to invest money belonging to his ward in the purchase of immovable or other property. it is interesting to observe that the language employed by the legislature in section 27 of the guardian and wards act and in sections 15 and 36 of the indian trusts act is almost identical. 11. the appeal must for the above reasons fail and is dismissed with costs......minor plaintiff appellant was bound to accept 1 acre 24 cents of wet lands purchased by his uncle sinnia chetti on the 14th november, 1927, for a sum of rs. 2,950 out of the money belonging to the aforesaid minor.2. the circumstances in which sinnia chetti came to be in possession of the minor's funds may be briefly stated. sinnia chetti and his brother palaniswami chetti were joint till march, 1920, when a partition was effected between them. palaniswami chetti died on the 2nd december, 1921, heaving a pregnant widow and a daughter. sinnia chetti appears to have been then asked by the other members of his family as well as that of the widow's to take charge of the properties left by palaniswarhi and look after the existing daughter, the widow and the child when born' (ex. iii). the.....
Judgment:

Abdur Rahman, J.

1. The only question which arises for decision in this appeal is whether the minor plaintiff appellant was bound to accept 1 acre 24 cents of wet lands purchased by his uncle Sinnia Chetti on the 14th November, 1927, for a sum of Rs. 2,950 out of the money belonging to the aforesaid minor.

2. The circumstances in which Sinnia Chetti came to be in possession of the minor's funds may be briefly stated. Sinnia Chetti and his brother Palaniswami Chetti were joint till March, 1920, when a partition was effected between them. Palaniswami Chetti died on the 2nd December, 1921, Heaving a pregnant widow and a daughter. Sinnia Chetti appears to have been then asked by the other members of his family as well as that of the widow's to take charge of the properties left by Palaniswarhi and look after the existing daughter, the widow and the child when born' (Ex. III). The widow subsequently gave birth to a son, who is the present plaintiff. In accordance with the arrangement arrived at shortly after Palaniswami's death, Sinnia Chetti took possession of the property left by his deceased brother, collected its income and continued to do so up till 1930 when he died. It was during this period, that is, in 1927 that the land in dispute was purchased by him from out of the minor's money which he had with him (Ex. I).

3. It has been admitted by the widow in her statement as a witness on behalf of the plaintiff that she and her father 'used to go to Sinnia Chettiar once in a year or six months and ask him for accounts and see them.' These accounts were filed in Court by defendant 1, who is the eldest son of Sinnia Chetti and after going through them and on a consideration of the other evidence in this case the learned Sub-Judge came to the conclusion that the land was purchased by Sinnia Chetti with the widow's knowledge and consent. This finding has hot been challenged before us although the earned Counsel for the appellant has tried to show, that the consent could not be said to have been validly given as the facts, that a sum of Rs. 2,000 was not paid by Sinmia Chetti to the vendor at the time when the purchase wais made and that a promissory note for Rs. 2,000 executed by him, that is Sinnia Chetti was given in part payment were deliberately withheld from; the widow. The non disclosure of these facts was immaterial in our opinion as it is quite possible that Sinnia Chetti may not have found it convenient at the moment to pay the money in cash and being a man of means the vendor was willing to accept a promissory note executed by him instead. The evidence on the record shows that the promissory note was duly discharged by Sinnia Chetti within about two months of its execution. Nothing else has been. suggested to indicate that any material fact regarding the land to be purchased was kept back from the widow. The land was expected, to bring as return of 5 1/2 per cent, on the money paid for its purchase and did so in 1928. There seemed to be nothing imprudent in the purchase of the land at the time. But for a subsequent depression in the value of immovable properties, this transaction would never have been questioned. Having regard to the nature of the transaction and in the absence of any other suggestion we must find that the consent given by the widow was free and valid.

4. The earned Counsel for the appellant however contends that inasmuch as Sinnia Chetti's legal position was either that of a constructive trustee or of a trustee de son tort it was incumbent upon him to invest the minor's money only in one of the securities authorised by Section 20 of the Indian Trust Act and the factum of the widow's consent to the purchase of land in dispute was wholly immaterial. The question to decide is if this is so.

5. Before examining this contention it might be more convenient to dispose of an objection raised by Mr. Patanjali Sastri towards the end of his arguments. He urged that as the present suit had been filed by the widow as a next friend of her minor son in spite of her consent it was not open to him to attack the purchase of the land and the suit is therefore liable to be dismissed or at all events stayed until the minor who is said to be of 16 years of age, attains majority. No objection appears to have been taken in the Courts below that the widow was not fully competent to represent her minor son and in the absence of any such objection, it seems to be impossible to give effect to this contention. The legal effect of plaintiff's mother's consent given at the time of the purchase of the land in dispute has got to be decided and it is not permissible in our opinion to allow the minor to be prejudiced by the fact that she has brought the suit as a next friend on his behalf. It is the minor who is the plaintiff in the suit and not his next friend although on account of his disability, he is authorised by law to institute the suit through a next friend. It is the minor's rights after all and not those of his next friend which have to be adjudicated in this case. This objection has therefore no force in our opinion and must be disregarded.

6. This brings us to the consideration of the main question involved in this appeal. It cannot be disputed-indeed it was admitted by the earned Counsel for the appellant that the mother was a de jure guardian of her minor son. What then was the-real position in which Sinnia Chetti stood in relation to the minor? It was conceded in the written statement that Sinnia Chetti was liable to account for the period during which he was in possession of the estate left by his brother. This would to a great extent, as pointed out by Mr. Venkatachari, go to show that the capacity in which Sinnia Chetty was acting was more or less of a guardian and hence as declared in Section 20 of the Guardian and Wards Act of 1890 fiduciary. But is that enough to bring him under the stringent provisions of Section 20 of the Indian Trust Act? Is it impossible for a guardian to purchase immovable property for his ward? Earned Counsel for the appellant relied on an order passed by Mr. Justice Scott in Cassumali Javerbhai Pirbhai, In re I.L.R.(1906) 30 Bom. 591, where that learned Judge refused to permit a guardian to invest monies belonging to a minor in the purchase of lands on the ground that the proposed investment was not one which a trustee was under the provisions of Section 20 of the Trust Act authorised to make. This may have been so and a Court may be justified in refusing, in the circumstances of a particular case, to sanction an investment in a security not authorised by the Trust Act; but could it not do so, if it were inclined to permit such an investment? The learned Judge had in deciding the case only observed that a Court should ordinarily be guided by the rules embodied in the Trust Act in sanctioning changes in the investment of the minor's property. The words in Section 27 of the Guardian and Wards Act (VIII of 1890) are general and a guardian is bound to deal with the property of his ward as carefully as a man of ordinary prudence would deal with it if it were his own and may subject to the provisions of Ch. III of the Act do all acts which are reasonable and proper not only for the realisation and protection but also i for the benefit of the property of which he is a guardian. I Trevelyan in his well-known work on minors expresses his opinion at page 170 (5th Edition) that a guardian was entitled to invest money belonging to his ward in the purchase of immovable or other property. A reference to Section 50 of the Guardian and Wards Act may not be out of place. Under that section, the High Courts have been empowered to make rules which are consistent with the Act and Sub-clause (h) of that section provides that they may do so as to the securities on which money belonging to wards may be invested. If the Courts were not authorised to permit the investment of minor's monies in any securities other than those authorised by Section 20 of the Indian Trust Act, the legislature, we take it, could say so without any difficulty and the power conferred on the High Courts to frame rules would have been meaningless and in any case unnecessary. A perusal of the definition of 'guardian' in Section 4 of the Act would show that the provisions of the Act are not confined to guardians who have been appointed or declared to be such by a Court but that a person who is not appointed or declared to be a guardian would also be governed by its provisions. It is interesting to observe that the language employed by the legislature in Section 27 of the Guardian and Wards Act and in Sections 15 and 36 of the Indian Trusts Act is almost identical. The conclusion seems to be therefore irresistible that a guardian although he occupies a position which is fiduciary in character cannot be held to be debarred from acquiring immovable property on behalf of his ward. The only standard by which he has to be judged is that of a prudent man who is acting carefully with his own money. If a guardian is found to have acted according to this standard he must be held to have done all that was required of him.

7. We are thus of opinion that if the minor's mother had acquired this property which fetched 5 1/2 per cent, at the time when this was purchased, her act could not be characterised as that of an imprudent person acting carelessly.

8. It was however argued by the learned Counsel for the appellant that Sinnia Chetti in hating obtained possession of the property belonging to the minor must be held not only to fall within the ambit of Section 94 of the Indian Trust Act but should also be held to come under the provisions of Section 95 of the Act and would thus be obliged to invest the monies belonging to the minor in the securities sanctioned by Section 20 of the Act. It may be that a guardian would fall within the scope of Section 94 of the Indian, Trust Act but he could not be held in every case to come within the purview of Section 95 of the Act. The argument overlooks the important words 'so far as may be' which occur in that section. If a guardian, as found above, is held entitled to purchase immovable property under Section 27 of the Guardian and Wards Act, shall we be justified in construing Section 95 of the Trust Act in such a manner as to make the provisions contained in the Guardian and Wards Act to be inoperative and useless. It is only to provide for such cases in our opinion that the words 'so far as may be' have been used, in Section 95 of the Trust Act. In this view, the cases such as Tirupatirayudu Naidu v. Lakshminarasamma : (1912)23MLJ599 , Vrandavan v. Parshottam : (1926)28BOMLR1481 and Peer Mohideen Rowther v. Aisa Bivi (1934) 67 M.L.J. 563 have no application and. need not be considered in any detail.

9. We are therefore of opinion that even if Sinnia Chetti were held to be a de facto guardian of the minor plaintiff appellant he would be justified in purchasing the property for his, that is, the minor's benefit.

10. This is however not all. The facts which have been stated above go to show that Sinnia Chetti was not acting as a guardian on behalf of the minor but was functioning as an agent on behalf of the minor's mother and de jure guardian, and that his accounts were being regularly scrutinised by the minor's legal guardian with the assistance of her father. If this is the correct legal position in which Sinnia Chetti was placed, his only duty would be to act according to her instructions or with her consent. Since it has been found that the land in suit was purchased by him with his principal's consent, he cannot be blamed and at all events not held to be liable for his action in acquiring the property. The legal guardian's consent would, therefore, be a complete reply to any action taken by the minor against him.

11. The appeal must for the above reasons fail and is dismissed with costs.


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