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K.R. Thangapandian Vs. Kuchu Bomma Naicker and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberLetter Patent Appeal No. 78 of 1964
Judge
Reported inAIR1965Mad368
ActsGuardians and Wards Act, 1890 - Sections 4, 7, 7(2), 7(3), 8, 10, 29(2) and 39
AppellantK.R. Thangapandian
RespondentKuchu Bomma Naicker and anr.
Cases Referred and Sriramulu v. Pundarikakshayya
Excerpt:
.....power to administer properties as per compromise decree of court--whether such person guardian appointed by will or by court under section 7(3) of act. ; there was a dispute between two windows of an estate-owner with regard to rival adoptions. the dispute was brought to the high court, which directed the court of wards in administration of the estate to file an interpleader suit in the sub-court, which was duly done. the suit resulted in a compromise decree, with recognised the validity of both the adoptions and which provided for an equitable settlements of properties on the minors and their adoptive mothers. the appellant, the natural father of one of the minors, was given certain rights of guardianship under the decree which further provided that he could administer the..........the minor are real, that the expenses relating thereto were truly incurred for the benefit of the minor's estate and that, in brief, this appropriation is ethical and just.(11) hence, in conclusion we have no hesitation at all in affirming the decree of the learned judge (ramakrishnan, j.) and dismissing the appeal. the district court must now proceed to the appointment of a suitable third party guardian, who may be a legal practitioner if the court thinks fit, upon such terms as will secure the best interests of the minor and the estate. this very appointment, as we have observed, will imply the removal of the de facto guardian (appellant) from office and power. such a legal guardian should fully investigate the claims of the de facto guardian against the estate of the minor, and call.....
Judgment:
1. This Letters Patent appeal has been instituted by one K. R. Thangapandian, the second respondent in certain proceedings under the Guardians and Wards Act (Act 8 of 1890), in the Court of the learned District Judge, Tiruchirapalli, and the appellant before Ramakrishnan, J., in A. A. O. 103 of 1963. The background of facts in regard to which the proceedings arose in the District Court itself, has been succinctly set forth in the judgment of the learned Judge. A great deal of the previous history will be found stated in Ponnalagu Ammal v. State of Madras, , in the judgment delivered by Rajamannar,

Chief Justice, on behalf of the Bench. For the purpose of the present proceeding, which does involve certain questions of interest upon the applicability of specific provisions of the Guardian and Wards Act to the facts, the matter might be taken up from the stage in the history, at which there was a dispute with regard to rival adoptions--the adoption by Ponnalgu Ammal of a minor as heir to the Marungapuri Estate in 1949, and the adoption by the other widow of the Zamindar, one Lakshmi Ammani. This dispute was brought up to this Court, which directed the Court of Wards in Administration of the estate to file an interpleader suit. Actually, at the stage of the history of the litigation, the rival adoption by the other widows, Lakshmi Ammani, had not taken place; but there was a dispute between the widows themselves, which forms the subject of controversy. The interpleader suit filed in accordance with the directions of this Court, was O. S. 28 of 1953 on the file of the Sub-Court, Tiruchirapalli. It resulted in a compromise decree, the crucial clauses of which have been extracted and set forth by the learned Judge (Ramakrishnan, J.) in his judgment.

(2) It is beyond dispute that, at the time of the compromise decree, both adoptions had taken place, and the decree actually provided for an equitable settlement, which, in virtual effect, recognised the validity of both. Briefly stated, under the decree, each minor was given a 61/2 anna share in the estate, ultimately in the form of specific and allotted properties. Ponnalagu Ammani, the first respondent in the present proceedings in the District Court, was herself given a three anna share. The present appellant, the natural father of the minor adopted by Ponnalagu Ammani, was given certain rights of guardianship, recognised by certain clauses of the consent decree. He was appointed guardian ad litem, and the decree provided that he could administer the properties allotted to the minor, on behalf of the minor, until the minor came of age. The present original petition for appointment of a guardian for this minor by Court, on alleged grounds of maladministration and misfeasance by the appellant (K. R. Thangapandian, the natural father of the minor), was instituted, under S. 10 of the Guardians and Wards Act No. 8 of 1890, in brief, it was a prayer by a person purporting to be a distant relative of the minor, and acting on his behalf and for his benefit, to appoint a third party guardian for the estate.

(3) This proceeding involves certain grounds of considerable interest as we earlier observed, upon the impact of specific provisions of Act 8 of 1890, hereinafter called the Act, on the facts of the case. There is an objection in the nature of a preliminary objection, urged by the appellant. This is, briefly, that the petitioner in the proceedings is not "any relative or friend of the minor" under S. 8(b) of the Act. The relationship is disputed. In any event, considerable hostility of interest is alleged, as between this person and the minor, and the ground is that this person cannot be herd at all, even to claim that a third party should be appointed as property guardian of the minor under S. 7 of the Act read with S. 10.

The further question of fact and law which arises in the case is whether the clause in the consent decree that we have earlier referred to, would invest the appellant with the capacity of "a guardian....appointed by will or other instrument or appointed or declared by Court" within the scope of S. 7(3) of the Act. If the appellant is such a guardian, indisputably, the Court will have no power to appoint someone else as guardian, until the power to appoint someone else as guardian, until the powers of the appellant as guardian have ceased under any of the provisions of the Act, including the provision for removal.

(4) The next point concerns the averments of maladministration and misfeasance urged against the appellant by the petitioner in the District Court. The contention is that these averments have not, factually, been established even prima facie. The sales of the minor's properties, which were certainly considerable, took place in the context of impending land ceiling legislation, and, in order of avert loss to the estate by the inevitable acquisition by the State of lands above the ceiling in extent, with compensation payable therefor at a far lower rate than the market value' in brief, it is strenuously contended that the sales were acts of prudent management, fully justified by necessity. The next argument is that the appropriation of a substantial part of the sale proceeds by the guardian, towards expenses incurred by him in prior litigation on behalf of the minor, was fully justified by the particulars of expenses and the accounts. In any event, there is no case for calling these acts into question, in the present proceedings. The final question is whether with reference to S. 39 of the Act, the appellant is again "a guardian appointed or declared by the Court' or a guardian appointed by Will or other instrument." If he is such a guardian, presumably, the appellant is liable to be removed, upon the due cause shown. (1) for abuse of his trust (S. 29(a) and (2) for having an interest adverse to the faithful performance of his duties (S. 39(g)). Whether these provisions will apply at all, and if they do not, whether the Court can appoint a guardian immediately without an order of removal of the appellant are certain of the crucial issues in the present controversy.

(5) We shall deal with these matters briefly seriatim, and in the light of the authorities to which our attention had been drawn.

(6) As regards the preliminary objection urged by the appellant, we do not think that it has any substance, in the light of the specific findings of the record. Undoubtedly, the language of S. 8(b) "any relative or friend of the minor"., is in its purport alternative, and not additive. In other words "a friend of the minor" who is not a relative, may certainly apply under this sub-section. As the learned Judge (Ramakrishnan, J.) points out, even an impersonal agency like the Collector of the District, is empowered to apply, in a suitable case and the true legal interpretation of the word "friend" here must be that it characterises a person beneficially interested in the minor, who may himself be an infant or a child of tender years, incapable of forming of friendship as such with the person intervening on his behalf. But we agree with contention of the learned counsel for the appellant that the "relative" must also be beneficially interested in the minor, in order to apply. On an interpretation in accordance with the spirit of the statute, certainly, a relative who is interested adversely to the minor, or interested in harming him in any manner, may not come within the purview of S. 8(b). But, here, the facts are that it has been found that the petitioner has intervened only to request the appointment of a third party as guardian, in the light of what appear to be prima facie questionable acts by the de facto guardian with regard to the estate of the minor, shows, in our view, his beneficial interest. The fact that he has some litigation to cloud this perspective, or to disentitle the petitioner to apply. That would dispose of the preliminary objection.

(7) The further question is of far greater interest. Briefly, that question is whether the appellant can claim to be a person "appointed by will or other instrument, or appointed or declared by the Court". Here, it is worthy of note that S. 7(2) and S. 39 employ practically identical language. The matter is not bare of authority. We have the authority of an early Bombay case Bai Hakor v. Bai Shangar, ILR 18 Bom 375, though the judgment is a very brief one, to the effect that the language of S. 39 of the Act, particularly, the word "instrument" implies that that word should be confined to instruments ejusdem generis with a will. Certainly, a particular clause of a consent decree, though conceivably it might amount to an "instrument", cannot claim that he is such a person contemplated by S. 7(2) of S. 39, whose removal under the law is necessary, before a third party can be appointed as guardian. If such removal is not necessary, then, the appointment itself of a third party as guardian will, under S. 7(2) of the Act, meddling with the estate, like the appellant. It is noteworthy that the decision in Bai Hakor v. Bai Shangar, ILR 18 Bom 375, was affirmed and followed by theBench of Abdur Rahim and Kumaraswami Sastri, JJ. In Krishnamurthi Iyer v. Parvathi Ammal, 6 Mad LW 760 : (AIR 1915 Mad 420). The argument of learned counsel for the appellant here is twofold. Firstly, he requests us to doubt the correctness of the ratio of these decisions, upon grounds advanced. Secondly, he argues, upon the strength of a passage in Maxwell on the Interpretation of Statutes, 11th Edn. that this kind of interpretation is itself a misapplication of the true doctrine of ejusdem generis. This matter may be briefly dealt with by us, before we proceed further.

(8) In Maxwell on Interpretation of Statutes, 11th Edn., p. 326, the principle of ejusdem generis is enunciated in a passage dealing with generic words following more specific words. The argument here is that the reference to "instrument" is proceeded only by the word "will", and not by other words indicating the genus. For this reason, it would not be a valid assumption that the word "instrument" is ejusdem generis with the preceding word "will".

As we follow the argument, it amounts to this: that there is only a single proceeding word, and not multiple words clearly indicating the genus, and that, in consequence, there is no common factor or determinant between the two entities which form the subject of interpretation. We do not think that this argument can be approved as correct. Certainly, the passage in Maxwell on Interpretation of Statutes seems to suggest that multiple words are generally to be found indicative of a genus, preceding the word which has to be construed upon the principle of ejusdem generis. But we are unable to see why this should be a right rule without exception. Undoubtedly, the argument might will be tenable if no common factor or determinant can be indicated; but, in our view, in the present context, this can easily be done. It is a well-settled proposition of law that, by means of a testamentary disposition, a person governed by the Hindu law can appoint a guardian for the estate of a minor. We are unable to see why the same effect should not be achieved by some other kind of document, which may be a deed of settlement, or a deed of gift. If that can be done--and there are certainly recognised instances--the common factor between the two words will be the creation of a guardianship by the document, and that would justify the interpretation of the word "instrument" in S. 39 as ejusdem generis with the preceding word "will". For these reasons, we are unable to doubt the correctness of the two decision, and we have to hold that the appellant is not a person, and cannot claim to be a person, appointed or declared by the Court as guardian, or a guardian appointed by will or other instrument. Certainly, the mere fact that the Court recorded the compromise decree cannot amount to such appointment or declaration, and this argument is not pressed. For, when we look at the definition of "Court" in S. 4 of the Act, we find that it would be the Court seized of the actual proceeding of guardianship, and not some other Court trying a suit in which the matter of guardianship arises in a collateral fashion.

(9) For this reason, we are of the view that, if due cause be shown, the petitioner in the district Court was perfectly entitled to ask for the appointment of a third party as guardian of the estate of the minor. Since the appellant can, at best be regarded only as a de facto guardian, that appointment would, by implication, amount to his removal, and his office and power would cease to exist by the provisions of S. 7(2) of the Act. No formal order of removal is necessary. All that is necessary is for us to consider whether a case has been established for the appointment of a third party as guardian, other that the appellant, and excluding him for the present, for reasons shown by the petitioner.

(10) This takes us to the merits of the matter. We are thoroughly satisfied that he petitioner made out a prima facie case for what be claimed. As regards the sales of the properties of the minor, sought to be justified as alienation's in the context of impending land ceiling legislation, we desire to state nothing at the present stage.

In Sakthi v. Kupputhammal, , one of us laid it down

that it might be an act of prudent management on the part of a guardian, in the context of any such impending legislation, to dispose of the extent that would be a surplus in terms of such impending legislation, at a market value which may be far more beneficial to the minor than the compensation payable by the State. In the present case the record does not show that the lands were sold for far below the market value, or without bona fides on the part of the de facto guardian. But the record does show that considerable sums were realised by such sales, and that very substantial amounts were appropriated by the de facto guardian towards alleged expenses incurred by him on behalf of the minor in prior litigation. It is contended that even a de facto guardian have a right, in law, to such appropriation, and Sriramulu v. Pundarikakshayya, AIR 1949 FC 218, is cited as authority for this view. We desire to state nothing whatever on this aspect, at the present stage. The question has to be thoroughly investigated concerning the extent of the appropriation, the character of that appropriation, and the justification for it.

Even if the appellant be regarded as a guardian de facto, certainly, the existence of such extensive claims against the minor, and the fact that action was taken by him without any approval of a judicial authority, on the basis of such claims, would justify the removal of such a guardian under S. 39(g). This observation is without prejudice to the claim advanced on behalf of the appellant by his counsel. Sri. N. R. Raghavachariar, that his client will be able to prove, to the satisfaction of any agency of investigation, that his claims against the minor are real, that the expenses relating thereto were truly incurred for the benefit of the minor's estate and that, in brief, this appropriation is ethical and just.

(11) Hence, in conclusion we have no hesitation at all in affirming the decree of the learned Judge (Ramakrishnan, J.) and dismissing the appeal. The District Court must now proceed to the appointment of a suitable third party guardian, who may be a legal practitioner if the Court thinks fit, upon such terms as will secure the best interests of the minor and the estate. This very appointment, as we have observed, will imply the removal of the de facto guardian (appellant) from office and power. Such a legal guardian should fully investigate the claims of the de facto guardian against the estate of the minor, and call him to account, if there are appropriations which are not justified. We need not particularise the steps to be taken here, in accordance with law. But, if the appellant is able to demonstrate, to the satisfaction of Court, that he has behaved only as a prudent guardian, mindful of the interests of the minor, and that he has not in any manner abused his trust, he may subsequently reapply to the Court for appointment under the Act, when his application may be considered on merits. We may here record an undertaking by Sri. N. R. Raghavachariar on behalf of the appellant to furnish ample security for any amount that might have been appropriated by him out of the estate of the minor, in excess of amounts spent for the minor's benefit. With these observations, the appeal is dismissed. There will be no order as to costs.

(12) Appeal dismissed.


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