Alfred Henry Lionel Leach, J.
1. This appeal raises the question whether the paternal grandmother of a Hindu minor is his lawful guardian when she happens to be his nearest living relation. From 1917 to 1924 the respondent's father had on various occasions borrowed money from the appellant. On the 18th September, 1924, an account was taken and it was found that the respondent's father owed the appellant an aggregate sum of Rs. 3,825 for which he executed a promissory note. The instrument was not properly stamped and therefore was not admissible in evidence. Realizing the defect the appellant filed a suit in the Court of the District Munsif of Bellary for relief on the basis of a settled account. The date of the institution of the suit was 16th July, 1932, and unless the appellant was entitled to rely on certain endorsements on the promissory notes his suit was time barred. I should mention that the respondent's father had died on the 4th October, 1924, and the suit was against the respondent as his legal representative. The respondent's mother had predeceased his father and on his father's death Neelamma, his paternal grandmother, took charge of his property. On the 6th September, 1927, she paid to the appellant a sum of Rs. 70 in reduction of the interest due on the loans and made an endorsement to this effect on the promissory note. On the 10th November, 1927, the District Court of Bellary acting under the provisions of the Guardians and Wards Act appointed one Basappa the guardian of the, minor's property. On the 18th February, 1928, Basappa paid a sum in reduction of the amount due and made an endorsement on the promissory note recording the fact of payment. On the 18th July, 1929, Neelamma made another payment in reduction of the debt and this was also followed by an endorsement on the instrument. Basappa was then alive and was still the lawful guardian of the respondent, but he died a month later. The last payment to the appellant was made by Neelamma on the 25th August, 1929. This was a sum of Rs. 1,000 paid towards the principal. Again she made an endorsement on the promissory note recording the fact of payment. In order to save limitation the appellant has to rely on the endorsements made by Neelamma on the 6th September, 1927, and on the 25th August, 1929. The District Munsif and on appeal the District Judge of Bellary held that the suit was time barred. The appellant then filed this second appeal which has been placed before a Full Bench in view of conflicting decisions of this Court bearing on the question whether Neelarnma was under Hindu Law the lawful guardian of the minor when she made these particular endorsements.
2. Section 20 of the Indian Limitation Act states that where interest on a debt is, before the expiration of the prescribed period, paid by the debtor or his agent duly authorised in this behalf, or where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or his agent, a fresh period of limitation shall be computed from the time when the payment was made; provided that, save in the case of a payment of interest made before the 1st January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by the person making the payment. Section 21(1) states that the expression 'agent duly authorized in this behalf' includes the person's lawful guardian. The fact that Neelarnma was the de facto guardian of the minor would not help the appellant. It was expressly held by a Bench of this Court (Madhavan Nair and Abdur Rahman, JJ.), in Nagayya v. Narasayya : AIR1938Mad853 , that an acknowledgment of a debt made by a de facto guardian of a minor does not prevent the debt from being time barred. This decision followed a previous decision of this Court to the same effect. The wording of Section 2b and Section 21 of the Limitation Act leaves no room for doubt that this decision is correct. The appellant, however, says that Neelamma was the lawful guardian of the minor, except during the period when Basappa was acting in pursuance of the order passed under the Guardians and Wards Act.
3. In support of this contention the learned Advocate for the appellant has relied on a passage in the edition of Strange's 'Hindu Law' published in 1864, 4th edition and a passage in Macnaghten's 'Principles and Precedents of Hindu Law' quoted in Kristo Kissor Nioghy v. Kadermoye Dossee (1878) 2 C.L.R. 583. The passage from Strange is at page 72 and reads as follows:
The natural guardians of a minor are, first his father, then his mother, elder brother, paternal relatives and maternal relatives.
4. The passage from Macnaghten is in these words:
A father is recognised as the legal guardian of his children, when he exists ; and when the father is dead the mother may assume the guardianship. In default of her, an elder brother of a minor is competent to assume the guardianship of him. In default of such brother, the paternal relations generally are entitled to hold the office of guardian ; and failing such relatives, the Office devolves on the maternal kinsmen, according to their degree of proximity; but the appointment of guardians universally rests with the ruling power.
5. The learned Advocate would have it that these passages must be accepted as authoritative support for the proposition that the legal guardianship devolves upon the nearest paternal relative and in default of a paternal relative on the nearest maternal kinsman. I am not prepared to accept this argument. I consider that it is contrary to principle and accepted authority.
6. It is common ground that the ancient texts of Hindu Law do not provide for the management of a minor's property beyond stating that the guardianship shall rest with the King. The position of the King is now taken by the Court. Custom has, however, recognised that the father of a Hindu minor, and on his death the minor's mother, is entitled to the guardianship of the minor's estate. This has been accepted from time immemorial so universally that the right of the father or of the mother as the case may be cannot now be disputed, but it appears to be equally clear that custom has not extended the rule beyond the mother. In the case of Krisio Kissor Neoghy v, Kadermoye Dossee (1878) 2 C.L.R. 583, Garth, C.J., referring to the passage from Macnaghten which I have quoted said:
We do not think that this passage means that all the persons therein mentioned have in turn an absolute right to take upon themselves the guardianship of a minor, without any permission or authority from the ruling power. If it did mean this, the authorities cited would not appear to support it.
7. Garth, C.J., then went on to point out that Jagannatha, one of the authorities cited, after quoting from Manu this passage:
The King should guard the property which descends to an infant by inheritance, until he returns from the house of his preceptor, or until he has passed his minority,
and from the Ratnacara this statement:
Wealth which descends to an infant by inheritance, and becomes the property of the minor, let the King guard; that is, let him protect it from the other heirs,
had proceeded to add these observations of his own:
Consequently, the meaning is, let him (the King) act in such manner that other heirs may not take the whole, defrauding the infant who is incapable for non-age of conducting his own affairs ; or the sense may be, let him commit the share of the minor in trust to any one co-heir or other guardian,
8. There is here authority that no one in the family is entitled as of right to act as the guardian of the minor. The right to act then depended upon the decision of the King. The judgment in Kristo Kissor Neoghy v. Kadermoye Dossee (1878) 2 C.L.R. 583 is of special importance in the present case as it related to a contest between the paternal grandmother and the paternal uncle on the one side and the maternal grandmother on the other for the custody of a minor. The Court held that none of them was entitled to claim custody as the lawful guardian.
9. The judgment in Kristo Ktssor Neoghy v. Kadermoye Dossee (1878) 2 C.L.R. 583 was accepted as correctly stating the law in Mst. Bhikuo Koer v. Mst. Chamela Koer 2 C.W.N. 191, which was also decided by the Calcutta High Court. This was a case under the Guardians and Wards Act and the contesting parties were the maternal grandmother and step-sister of a minor who were his nearest relatives. Trevelyan and Stevens, JJ., held that there was not, even before the Guardians and Wards Act was passed, any one other than the father or the mother who had an absolute right to the custody of a Hindu minor.
10. Kristo Kissor Neoghy v. Kadermoye Dossee (1878) 2 C.L.R. 583 has been cited with approval in two decisions of this Court. Ranga-nayaki Ammal v. Ramanuja Aiyangar : (1911)21MLJ600 and Thayammal v. Kuppanna Koundan. In the latter case Sadasiva Aiyar, J., following Kristo Kissor Neoghy v. Kadermoye Dossee (1878) 2 C.L.R. 583 and Mst. Bhikuo Koer v. Mst. Chamela Koer 2 C.W.N. 191, held 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, he said, 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. It was not indicated how exceptions might arise in favour of the elder brother or the direct male and female ancestors of a minor and the decision cannot be taken as going really beyond what was decided in the two Calcutta cases. In Seetharamamma v. Appiahi, Viswanatha Sastriar, J., expressed the opinion that there is nothing in Hindu Law 'which limits guardianship only to the father, the mother, and, failing them, the King'. This statement cannot be accepted as correctly stating the position as I have already pointed out the Hindu Law, in so far as it is to be gathered from the ancient texts only provides for the King having charge of a minor's property. There is nothing to be found in the ancient writings which can be interpreted as giving the ' father or the mother any right to guardianship. Their present rights in this respect are based merely on custom.
11. In Surayya v. Subbamma : AIR1928Mad42 , Devadoss and Jackson, JJ., went very far and it is this decision which has caused this appeal to be placed before a Full Bench. They decided that under the Hindu Law, in the absence of the father and the mother, the paternal grandmother is the natural guardian of the grandchildren. They said that there was no direct authority for the contention that the paternal grandmother was not the natural guardian of her grandchildren in the absence of their father and mother, ' but they did not consider the bearing of the two Calcutta cases to which I have referred. The basis of their decision that the paternal grandmother is the natural guardian of her grandchildren is to be gathered from this statement in the judgmtent:
Considering the habits and customs of the people of this part of the country, there is no reason why the paternal grandmother shouldnot be considered as the natural guardian of her grandchildren in the absence of their father and their mother.
12. The short answer to this statement is that neither by Hindu law or custom is the grandmother recognised as the lawful guardian of the minor. No member of the family other than the father or the mother has been recognised as having the right of guardianship and this statement receives full support from Mayne, 10th edition, page 299, from Mullah's Principles of Hindu Law, 8th edition, page 565, and from Trevelyan's 'Hindu Law', 3rd edition, page 231. The Bombay High Court in effect expressed the same opinion in In re Gulbai and Lilbai I.L.R. (1907) 32 Bom. 50 Of course, all other things being equal the nearest relative of the minor should have the position of guardian but if the father and the mother have died no relative can become the lawful guardian without an order of the Court.
13. I hold that the Courts below were right in refusing to recognize Neelamma as the guardian in law of the minor and in rejecting the claim that her endorsements bound him. It follows that I consider that Surayya v. Subbamma : AIR1928Mad42 was wrongly decided and therefore should not be followed. I would dismiss the appeal with costs.
14. I entirely agree and am only adding a few words in view of the fact that we are differing from a Bench of this High Court. After the very full investigation into this subject which has been made to-day - the learned Counsel for the appellant referred to all the relevant decisions, - I think it is clear that at least at some period of time which it is difficult to fix, the only guardian of a minor was 'the King', as he is so described in the texts. But to-day undoubtedly it cannot be argued that the father and in his absence the mother are not the legal guardians. They have been so recognised by usage and custom. Indeed the position of the father is impliedly recognised by statute under Section 19 of the Guardians and Wards Act. How all this came about is attractively put in the latest edition of Mayne on Hindu Law, paragraph 231 at page 299. The learned author envisages the natural delegation to the parents by the King of duties so intimately affecting their son, but that idea, as has been pointed out in the authorities to which my Lord has referred, although now having attained the force of law, has never been extended beyond the parents by the Courts with the exception of the decision in Surayya v. Subbamma : AIR1928Mad42 . In the case of persons other than the parents, an express delegation or appointment is required and this has been done and is to-day done through the machinery of the Court of Wards. With all respect,. I think the learned Judges who decided Surayya v. Subbamma : AIR1928Mad42 . confused the two positions, namely, a consideration as to who was the most desirable person to be appointed as guardian of a minor with a consideration of whether desirability constituted a person a legal guardian automatically. The difference between the two positions is fully recognised by Davar, J., in In re Gulbai and Lilbai I.L.R. (1907) 32 Bom. 50 and it seems to me that if these two distinctions are kept apart, this subject presents very little difficulty. Desirability can only be relevant in an application to remove the father or mother or in an application to appoint some one else. I agree that the decision of my learned brothers, Devadoss and Jackson, JJ., in Surayya v. Subbamma : AIR1928Mad42 is not in conformity with authority and that this appeal must be dismissed with costs.
Krishnaswami Aiyangar, J.
15. It is scarcely necessary for me to add anything after, if I may say so with the utmost respect, the full and elaborate consideration that the matter has received at the hands of my Lord. The question in short is whether a paternal grandmother can by reason of her relationship alone be held to be a lawful guardian within the meaning of Section 21 of the Indian Limitation Act. She may in a sense be regarded as a natural guardian as her relationship to the minor is so close that she may be expected naturally to watch over and guard his interests. It is however better to avoid the use of the expression for the present purpose, as we are not concerned with finding whether in the ordinary course of nature she is or is not a fit and proper person to protect the minors' interests in the absence of a nearer relation. The statute has used the expression lawful guardian and the introduction of the term natural guardian can scarcely elucidate discussion, but on the contrary may divert the attention.
16. The Act does not define the expression 'lawful guardian'. But it is obvious, that we must resort to the personal law of the minor or to other enactments if any to ascertain its meaning. The Only enactment having a bearing is the Guardians and Wards Act, 1890, which does no more than define the word guardian, simpliciter. We have therefore to fall back on the personal law of the minor, namely, the Hindu law to get at the meaning of the expression with which we are concerned. If a person has been appointed or declared a guardian by Court under the Guardians and Wards Act, he or she is undoubtedly a lawful guardian. The difficulty arises only when no such appointment has been made. A lawful guardian can be no other than a person whom the law invests with the right and duty of protecting the property of the minor. Such a person is generally described as a de jure guardian, in contrast to a de facto guardian. The law does make a real distinction between a de jure guardian and a de facto guardian. A de facto guardian may be a relation or even a mere intermeddling stranger who in fact assumes the management of a minor's property though in law he or she has no authority to do so. It is consequently impossible to regard him as a lawful guardian, notwithstanding the fact that by reason of the decision of Courts, the acts of a de facto guardian bind the estate of the minor, if done under the pressure of necessity or for the clear benefit of his estate.
17. There is in the texts' of Hindu law no warrant for regarding a paternal grandmother or indeed even the parents themselves for that matter, as the lawful guardians of a minor entitled to manage his properly as of right. The texts bearing upon the point are few and do not throw any direct light on the point under consideration. They only seem to establish the proposition that it is the King alone who as parens patriae is the universal and supreme guardian of all the minors and their estates in the Kingdom. He of course has the power to delegate his authority and to appoint guardians, and that power is now vested in the Courts established by law by a process of legislative delegation, if I may so call it. As has been pointed out by my Lord, the parents of a minor have been so long and so consistently regarded as lawful guardians by the Courts no less than by the community that an exception in their favour must be held to have been engrafted on the primeval law of the Hindu text writers. The father and in his absence the mother must accordingly be regarded as lawful guardians, not requiring an appointment for acting as such, and this has now to be treated as an integral rule of the law itself. But such a custom is wholly lacking in the case of other remoter relations not excluding the paternal grandmother however much they may be interested in the welfare of the minor. In the passages cited from Macnaghten and Strange, there would seem to be at the first look a statement of the order of lawful guardianship which includes other relations besides the father and the mother. It is however clear to my mind that the enumeration was not intended to declare the persons to be recognised as lawful guardians under the Hindu law without reference to an appointment by Court. It seems to me that it will be more in consonance with the spirit of the law to hold that what was intended by the enumeration was but an indication of the order of preference which the Court should bear in mind in making the choice of a guardian among the available relations, the dominant consideration being the welfare of the minor. It follows that neither the paternal grandmother nor any other relations beyond the mother can be regarded as possessing an inherent right to act as lawful guardians for the purposes of Section 21 of the Limitation Act. 1 have the less hesitation in assenting to this view, as I consider that it will tend to the better protection of the minors' properties than if I were to hold that a series of relations commencing from the elder brother and including the paternal and the maternal relations have the inherent right directly and without an appointment by the Court to assume charge of a minor's estate and proceed to keep alive debts on his behalf. Such an expansion of the, rule is, it seems to me, fraught with dangerous consequences, and in the absence of binding authority, should not be upheld. I concur in the judgment just now pronounced by my Lord.