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In Re: A.T. Vasudevan and ors. Minors., A.S. Thiruvengada Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1948)2MLJ47
AppellantIn Re: A.T. Vasudevan and ors. Minors., A.S. Thiruvengada Mudaliar
Cases ReferredSellappa v. Suppan
Excerpt:
.....property at all and that therefore a guardian, if appointed, would have nothing to do with the family property. and we do further ordain that the said high court of judicature at madras shall have the like power and authority with respect to persons and estates of infants, idiots and lunatics within the presidency of madras, as that which is now vested in the said high court immediately before the publication of these presents. no such distinction applies to a hindu family in india as it is now well settled. there is no direct case decided by this court on the question of inherent jurisdiction of the high court under clause 17 of the letters patent in a matter like this except for an obiter reference contained in the judgment of venkataramana rao, j. (2) in spite of the court passing..........for being appointed guardian of the joint family property belonging inter alia, to his five minor sons and for sanction of the sale of that property as being beneficial to the interests of the minor sons. the petitioner as the father is the karta of the family and he has besides the five minor sons two adult sons, and there are also his wife and an unmarried minor daughter who have rights of maintenance. the properties admittedly are ancestral immoveable properties consisting of lands in the villages of sembiam and paravallur measuring in the aggregate about 52 acres. those villages were recently brought within the municipal limits of madras city and the lands therein have consequently risen in value. i shall deal with the facts bearing upon the beneficial nature of the proposed.....
Judgment:

Yahya Ali, J.

1. This is an application under clause 17 of the Letters Patent of 1865 by A.S. Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging inter alia, to his five minor sons and for sanction of the sale of that property as being beneficial to the interests of the minor sons. The petitioner as the father is the Karta of the family and he has besides the five minor sons two adult sons, and there are also his wife and an unmarried minor daughter who have rights of maintenance. The properties admittedly are ancestral immoveable properties consisting of lands in the villages of Sembiam and Paravallur measuring in the aggregate about 52 acres. Those villages were recently brought within the Municipal limits of Madras City and the lands therein have consequently risen in value. I shall deal with the facts bearing upon the beneficial nature of the proposed transaction at a later stage.

2. The first question is whether this Court has jurisdiction to entertain this application. It is not denied that under the Guardians and Wards Act no guardian of the property of an infant will be appointed where the minor is a member of an undivided family governed by the Mitakshara Law, the reason being as laid down by the Judicial Committee in Gharibullah v. Kalaksingh (1903) L.R. 30 IndAp 165 :I.L.R. 25 All. 407 that the infant's interest is not individual property. As observed by their Lordships, it has been well settled by a long series of decisions in India that a guardian cannot be appointed in respect of the infant's interest in the property of an undivided Mitakshara family. This was pointed out to be 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.

3. This view has been acted upon in a series of cases collected in footnote (n) to paragraph 230 of Mayne's Hindu Law. It is, however, mentioned by the same learned author that the High Court has inherent jurisdiction to appoint a guardian of the property of the minor who is a member of the joint family even where the minor's interest in the property is an undivided share in the family property unlike under the Guardians and Wards Act. This jurisdiction is conferred by clause 17 of the Letters Patent which is in these terms:

And we do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to persons and estates of infants, idiots and lunatics within the presidency of Madras, as that which is now vested in the said High Court immediately before the publication of these presents.

This is substantially a reproduction of clause 16 of the Letters Patent of 1862 in which it was stated that this Court would have the jurisdiction which was then vested in the Supreme Court. The jurisdiction of the Supreme Court was laid down in clause 32 of the Madras Charter of 1800 which is as follows:

And we do hereby authorise the said Supreme Court of Judicature at Madras to appoint Guardians and Keepers for infants, and their estates, according to the order and course observed in that part of Great Britain called England.

That jurisdiction was exercised in England by the Chancellor in the Court of Chancery as a part of the general delegation of the authority of the Crown virtute officii. As it has been laid down in a series of cases in England, the Chancellor's jurisdiction has its foundation in the prerogative of the Crown flowing from its general power and duty as parens patrie. Now the Court of Chancery in exercise of this jurisdiction does not permit the conversion of real property belonging to a minor into personal property; but that is because under the English Law a distinction obtains between realty and personality both with regard to the infant's power of disposal thereof by will and with regard to the line of succession. No such distinction applies to a Hindu family in India as it is now well settled. The reference in the Charter of 1800 to the order and course followed in England is primarily with regard to matters of jurisdiction and not to the entire body of the law applicable such as the distinction with regard to conversion of real property belonging to the minor into personal property. There is no direct case decided by this Court on the question of inherent jurisdiction of the High Court under clause 17 of the Letters Patent in a matter like this except for an obiter reference contained in the judgment of Venkataramana Rao, J., in Raja of Vizianagaram v. Secretary of State for India : (1936)71MLJ873 . There the question was whether under this clause the High Court had jurisdiction with regard to minors outside the limits of the Presidency Town and whether its jurisdiction to act under that clause was not affected by the Guardians and Wards Act. Venkatasubba Rao and Venkataramana Rao, JJ., held that the jurisdiction of the Supreme Court was not limited to the City of Madras, that that jurisdiction was not in the exercise of its ordinary original jurisdiction and that it is saved by Section 3 of the Guardians and Wards Act. What is the effect of the decision of the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi will be upon that ruling is a matter which does not arise here, but the only material portion of the judgment in the Madras case that is relevant for the purpose of this case is the dictum of Venkataramana Rao, J., at page 459 of the report. After referring to a number of Bombay, Calcutta and Allahabad decisions the learned Judge concluded that the High Court has jurisdiction to appoint a guardian for a minor apart from the Guardians and Wards Act and then observed:

The practice in this Court, so far as my experience goes, has been consistent with the view taken by the other High Courts.

This observation is relied on by Mr. Panchapakesa Sastri to show that although there are no reported cases bearing upon the question at issue there has been an invariable practice here following the line of the various decisions of the Bombay, Calcutta and Allahabad High Courts. I shall refer to a few of those cases. In In re Jairam Luxmon I.L.R. (1892) Bom. 634 and In re Jagannath Ramji I.L.R. (1893) Bom. 96, this question had arisen, but in those cases no directions for alienation of the property were given. Guardians were appointed and the responsibility with regard to the alienation was thrown upon them. In In re Manilal Hurgoven I.L.R. (1900) Bom. 353, the proposed alienation by the guardian was duly sanctioned by the Court after considering the various objections raised against it. The facts of that case were very similar to those of the present case. Jenkins, C.J., raised the question whether the manager of the family, the father, had not the right to deal with the family property and whether by granting sanction the Court would not be depriving the minor of the right to object to the alienation after attaining majority if he thought proper to do so. Eventually sanction was given holding that the High Court had power in such cases to appoint a guardian of the property of the minor apart from the Guardians and Wards Act. This case was followed by the same Court in Narsi Tokersey v. Sachindranath Gajanan I.L.R. (1929) Bom. 75. The correctness of this view was however doubted by Kania, J., as he then was in In re Dattatraya Govind Haldanker I.L.R. (1932) Bom.519. The learned Judge raised two important doubts (1) Why should the purchaser demand an order of sanction from the Court before purchasing the property? (2) In spite of the Court passing the order of sanction, the purchaser would not be absolved from the duty of making the necessary enquiries and in the event of the minor challenging the transaction the purchaser would still have to prove that he made independent enquiries and satisfied himself as to the power of the manager of the joint family to enter into that transaction. In Mahadev Krishna, In re I.L.R. (1937) Bom. 432, the question again arose for consideration and Sir John Beaumont, C.J. and Rangnekar, J., reaffirmed the principle of the earlier decisions in In re Manilal Hurgoven I.L.R. (1900) 26 Bom. 353 and in Narsi Tokersey v. Sachindranath Gajanan I.L.R. (1929) Bom. 75, and referring to Kania, J.'s decision in In re Dattatraya Govind Haldanker I.L.R. (1932) Bom. 519, dissented from it and answered both of his doubts. With regard to the first of his doubts it was said that the purchaser does not seek to cast any burden on the Court. He merely says that he is not going on with the transaction unless he gets a good title. It was pointed out that it was difficult for a purchaser to satisfy himself as to the existence of legal necessity or benefit to the estate and that evidence with regard to legal necessity might not be available when the transaction may be attacked in years to come by a minor son of the manager. The youngest minor in the present case, it may be noted here, is one year old and the transaction may be questioned 20 years later. With regard to the second doubt Rangnekar, J., further pointed out that although the legal position is correct that the purchaser should satisfy himself that a legal necessity exists or that moneys are required for the benefit of the estate many transactions take place which are not challenged and the burden placed upon the purchaser or the mortgagee in such cases is completely discharged without the parties coming to the Court. The latest pronouncement of the Bombay High Court is contained in Full Bench decision in Ratanji Ramji, In re I.L.R. (1942) Bom. 39. The entire case-law was fully reviewed and the jurisdiction of the Court to appoint a guardian of the minor was affirmed both on the ground of the power conferred under clause 17 of the Letters Patent and by virtue of the long standing practice in that Court. This view has been acted upon by the Calcutta High Court in Hari Narain Das, In re I.L.R. (1922) Cal. 141 and In re Bijaykumar Singh Budar I.L.R. (1931) Cal. 570 and by the Allahabad High Court in In the matter of Govind Prasad I.L.R. (1928) All. 709. The Allahabad High Court has jurisdiction by virtue of clause 12 of the Letters Patent in respect of the persons and property of the minors. That Court, however, refused to exercise that jurisdiction in that particular case on the ground of inexpediency and want of precedent. The result of this foregoing survey is that in the other Chartered High Courts the consensus of opinion has been that in the exercise of its inherent jurisdiction vested in it under the Letters Patent, which jurisdiction is preserved by Section 3 of the Guardians and Wards Act, the High Court has power to appoint a guardian in respect of the person and property of the minors covering even their undivided interest. Although there is no direct decision of this Court with regard to this matter there is the statement of Venkataramana Rao, J., that the practice in this Court has been on the same lines as indicated in the Bombay and Calcutta decisions. That practice is warranted by clause 17 of the Letters Patent.

4. The next question is whether, the Court having the power, the proposed transfer is beneficial to the interests of the five minor sons of the petitioner. The facts set out in the application and the supporting affidavit are these. Both the pieces of land are dry lands. This property fell in the partition which took place in 1942 between the petitioner and his brother to the petitioner's share. It was in that year valued in the deed of partition as being worth Rs. 15,000. On the date of partition there was a mortgage subsisting over this property for Rs. 11,000. The petitioner from his own earnings discharged the entire debt. The land has no irrigation facilities for the purpose of cultivation and hence no wet crops were ever raised except in a small area. The petitioner was therefore constrained to lease out the Palmyra trees in both the pieces of land for the purpose of toddy extraction. He entered into an arrangement on 12th April, 1947, whereby the lessee was to take a lease of the property for one year which will expire on 30th September, 1948, the rent reserved for that period being Rs. 1,600. On that date this source of revenue will completely disappear owing to the introduction of prohibition in the city from 1st October, 1948. With regard to the rest of the land the petitioner arranged for raising casuarina plantations with two persons who were to raise plantations at their expense over a period of nine years commencing from 3rd July, 1943. At the expiry of the period after the plantation is cut it would be sold and half the sale proceeds would be paid over to the petitioners. The plantation is very tender still and the lease has to run its course. In the meantime by reason of the general rise in prices and also the special rise occasioned by the inclusion of those villages within the limits of the City of Madras, the petitioner has been in a position to secure an offer of Rs. 1,95,000 for both the plots of land measuring 52 acres from one Mr. M.V. Venkataraman who proposes to build a factory on the land. An agreement was entered into with him embodying the terms; but since t he purchaser is offering such a high price he has stipulated that the sanction of the Court should be previously obtained. It would appear that an adjoining plot of land with similar facilities measuring 35 acres was sold a little over a year ago for a sum of Rs. 34,000. It is perfectly clear that the offer of Rs. 1,95,000 is a very handsome offer which, if not accepted and implemented, might be withdrawn and no similar offer may be forthcoming for a long time to come. In order to effectuate this transaction the petitioner has entered into an arrangement with the lessees of the casuarina plantation by which they have agreed to relinquish all their rights under the lease on being paid a sum of Rs. 9,001 on or before the 14th April, 1948. The net amount available by the sale of the property would then be Rs. 1,86,000 which undoubtedly is an exceedingly good price for the land, almost in the nature of a windfall. There can be no doubt in these circumstances that the proposed sale of these lands is highly advantageous and beneficial to the interest of the entire family including the minor coparceners.

5. The next question is whether a sale by the manager of a joint family property is competent when it is only for the benefit of the estate, since there is no case of there being any legal necessity. Whatever the ancient texts might have said about this matter the trend of decisions for a long time has been definitely to hold that a joint family property can be sold by a manager if it is shown that it is clearly beneficial to the interests of the family even though there is no legal necessity justifying the transaction. It will be sufficient 'to refer to some of the most recent cases reported and unreported. In Sellappa v. Suppan : AIR1937Mad496 , Venkatasubba Rao and Cornish, JJ., held that the power of the manager of a joint Hindu family to alienate property can be exercised not only in a case of need but for the benefit of the estate. At one time in view of certain observations of the Judicial Committee in Hanoomanpersaud Panday v. Mussumat Babooee Munraj Koonwaree (1856) 6 M.I.A. 393 and Palaniappa Cheiti v. Sreemath Devasika-mony Pandarasannadhi , it was thought that there should be actual pressure on the estate; but in Sellappa v. Suppan : AIR1937Mad496 , it was pointed out that ' pressure and danger ' in those two cases were referred to by their Lordships as examples of benefit and that the pronouncement of the Judicial Committees did not justify a narrower view being taken of the expression 'for the benefit of the estate.' In a number of recent unreported cases this view has been uniformly adopted (vide App. No. 206 of 1942 decided by King and Shahabuddin, JJ., on 3rd March, 1944, App. No. 101 of 1945 decided by Wadsworth and Govindarajachari, JJ., on 15th April, 1947 and Appeals Nos. 261 and 418 of 1945 decided on 5th February, 1948, by Rajamannar, O.C.J. and Satyanarayana Rao, J.). I find that the proposed transaction is clearly beneficial to the estate and to the interests of the minors and I have no hesitation in sanctioning it.

6. The only other question is as to the safeguards that should be provided in the interests of the minors as to the disposal of their shares of the net proceeds of the sale. The petitioner undertakes to purchase National Savings certificates for the maximum amount permissible, viz., Rs. 15,000 in the names of each of his minor sons and also in the names of himself and his wife. As the family is now composed, the five minor sons will be entitled to 5/8ths of the consideration which comes to Rs. 1,16,250. Nobody can predicate the precise share of an undivided coparcener but proceeding upon the existing basis it is essential that a sum equal to the share of the minors with some further margin is put in their names. National Savings certificates of the value of Rs. 15,000 may be purchased in the name of each of the minor sons and deposited in Court immediately on receipt of consideration. A further sum of Rs. 50,000 should be invested in Government securities. The petitioner is empowered to purchase them out of the consideration of the proposed transaction and deposit the securities with the Registrar to the credit of this original petition. The certificates and the securities will remain in the custody of the Court subject to such orders as may from time to time be passed.

7. The result is that the petitioner is appointed guardian of the joint family property belonging to the five minor sons and that the sale of the two items of property mentioned in the schedule attached to the petition is sanctioned in favour of Mr. M.V. Venkataraman or his nominee for a sum of Rs. 1,95,000. The guardian is empowered to convey the minor sons' interest in the said property to the purchaser subject to the conditions enumerated above. As the entire share of the minor sons will be under custodia legis, there is no further necessity to ask the guardian to furnish security. It is sufficient if under Order 32, Rule 8 of the Original Side Rules he gives an undertaking to furnish the statement mentioned in that rule and to keep full and correct account of all moneys and properties of the minors received and expended by the guardian on their behalf and file and prove the same in Court whenever so required. The undertaking should be furnished in three days.

8. As the father of the five minors is himself the petitioner, following the course of action adopted in Ratanji Ramji, In re I.L.R. (1942) Bom. 39, I appointed Mr. A.V. Viswanatha Sastri, Advocate, as guardian ad lilem of these five minors in this case. I have received very valuable assistance from him. He will get a remuneration of Rs. 500. The petitioner will pay that amount to Mr. A.V. Viswanatha Sastri within two days.

9. The costs of this petition including the remuneration to be paid to Mr. A.V. Viswanatha Sastri will come out of the estate.


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