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Thayammal and anr. Vs. Kuppanna Koundan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1915Mad659(2); (1914)27MLJ285
AppellantThayammal and anr.
RespondentKuppanna Koundan
Cases ReferredKristo Kissor Neoghy v. Kader Moye Dossee
Excerpt:
- - 820 is however cited in which it is said that 'it was not questioned and it would riot very well be questioned' that a paternal grandmother of the minor who has acted as the manager of the minor's property 'answered to the descriptions of natural guardian in this case. 233. apart from this however as my learned brother has said in his judgment (which i have had the benefit of reading) that a female in the direct line of ascent stands in hindu law on a totally different footing as regards rights of guardianships from a collateral like a paternal aunt......elder brother and the direct male and female ancestors of the minor) is entitled as a matter of natural right to be and to act as guardian of a minor's person and properties. recourse must be had to the court (representing the rights of the king which are paramount to even the rights of the parents, where there is no natural guardian alive.2. the paternal aunt was therefore not the natural guardian of the plaintiff when she made the unauthorised alienation.3. assuming that she was the de facto guardian, her alienation for no necessity need not be set aside. article 44 of the limitation act does not apply to alienations by unauthorised guardians see mata din v. ahmed ali i.l.r. (1911) a. 213 the judgment of the lower appellate court is right in the main but in the decretal portion, it.....
Judgment:

Sadasiva Aiyar, J.

1. Following Kristo Kissor Neoghey v. Kader Moye Dossee (1871) 2 C.L.R. 583 and Musst. Bhihno Koer v. Musst Chamelu Koer 2 C.W.N. 191. I hold that under Hindu Law, nobody-else than the father and mother of a minor (with probable exceptions in favour of the elder brother and the direct male and female ancestors of the minor) is entitled as a matter of natural right to be and to act as guardian of a minor's person and properties. Recourse must be had to the court (representing the rights of the king which are paramount to even the rights of the parents, where there is no natural guardian alive.

2. The paternal aunt was therefore not the natural guardian of the plaintiff when she made the unauthorised alienation.

3. Assuming that she was the de facto guardian, her alienation for no necessity need not be set aside. Article 44 of the Limitation Act does not apply to alienations by unauthorised guardians See Mata Din v. Ahmed Ali I.L.R. (1911) A. 213 the Judgment of the Lower Appellate Court is right in the main but in the decretal portion, it decrees possession of the entire lands covered by Exhibit III forgetting that so far as the portions covered by Exhibit II are concerned the claim had been held to be barred by limitation.

4. The lower Court's decree will be modified accordingly, that is by providing that the plaintiff's suit shall be decreed only as regards the portion or fraction of the lands covered: by Exhibit III which is not included in Exhibit II and it will be confirmed in other respects. The appellants will pay half of respondents costs in this Court and bear their own.

Tyabji, J.

5. No direct authority is cited to us showing that a paternal aunt is a natural guardian (as distinguished from a testamentary guardian or a guardian appointed by Court) of a minor under the Hindu Law.

6. Mohanund Mondul v. Nafur Mondul I.L.R. (1899) C. 820 is however cited in which it is said that ' it was not questioned and it would riot very well be questioned' that a paternal grandmother of the minor who has acted as the manager of the minor's property ' answered to the descriptions of natural guardian in this case.' It is argued for the Appellants that this is a ruling that a paternal grandmother is a natural guardian and that therefore a paternal aunt may also be such and may therefore be clothed with the powers of a guardian without being appointed to do so by competent authority. It may be that the remarks just preceding the statements I have cited may require reconsideration in view of what was said by their Lordships of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri I.L.R. (1911) C. 233. Apart from this however as my learned brother has said in his judgment (which I have had the benefit of reading) that a female in the direct line of ascent stands in Hindu Law on a totally different footing as regards rights of guardianships from a collateral like a paternal aunt. The only other authorities cited for the appellant consists of passages from MacNaughten's Hindu Law and similar text books where it is said that paternal kinsmen have the right of guardianship. It is not quite clear whether female paternal kinsmen (not being in the direct line of ascent), are intended to be included amongst those relations, who have the 'natural' right of guardianship. Mayne in his Hindu Law (8th Edition) page 278, paragraph 211, on the other hand expressly refers to male kinsmen alone as having this right. And this view is supported by the decision in Kristo Kissor Neoghy v. Kader Moye Dossee (1878) 2. C.L.R. 583 and by the view expressed by my learned brother in his judgment.

7. I therefore agree in the order proposed by my learned brother.

8. The memorandum of objections is allowed with costs as Exhibit III was not executed for purposes binding on the plaintiff and it is not proved that Rs. 50 (the money recovered by plaintiff's aunt) was spent for the plaintiff's benefit.


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