(1) The defendants in a suit for declaration of title to properties and possession of the same with claim for mesne profits, are the appellants in this second appeal. The facts relevant and material for the second appeal may be briefly set out.
(2) The suit properties originally belonged to one Anjalai Ammal wife of Arumugha Padayachi, the putative father of the plaintiffs in the suit. They are the children of Arumugha Padayachi by his concubine Marimuthu Ammal. Anjalai Ammal having no male issue, under the deed of settlement Ex. A.1 dated 25-10-1955, settled the suit properties on the minor plaintiffs. The deed of settlement refers to Arumugha Padayachi as their protector, father and guardian and is recited therein that the properties which had been settled on them are on their behalf placed in possession of their guardian, the said Arumugha Padaychi. Certain conditions are imposed under the deed enjoining the settles to maintain Arumugha Padayachi during his lifetime, the properties to be taken by the plaintiffs after his lifetime with absolute rights. A charge is provided in favour of Arumugha Padayachi for his maintenance. The settlement deed referring to a mortgage over the properties in favour of one Subramania Pillai and directing payment of Rs. 880 towards that mortgage provides that to extent of the said sum of Rs. 880 if it becomes necessary for its discharge, the guardian will have power to mortgage the properties and borrow or sell a portion properties. The properties are valued at Rs. 1500 and there is specific prohibition against any alienation of the properties except to the extent of and for the purposes provided in the deed as above set out. The settlor, it may be stated, has, under the settlement deed, parted only with a share in the items she owned retaining to herself the remaining share. Arumugha Padayachi did not pay the mortgage the sum of Rs. 880 as provided under the settlement deed and the mortgagee filed the suit O. S. 334 of 1956 on the file of District Munsif Court, Chidambaram, for recovery of the mortgage amount. The plaintiffs were parties to that suit and a preliminary decree for the full mortgage amount had been passed against the plaintiffs and Anjalai Ammal. The guardian, despite the injunction in the settlement deed first mortgaged items 3 and 4 of the suit properties to the second defendant for a sum of Rs. 220 on 2-6-1956 and later on 1-12-1956 along with Anjalai Ammal he sold the items for a sum of Rs. 500 under Ex. B. 2. it is finding that no portion of the consideration went in discharge of the mortgage in favour of Subramania Pillai. Again with Anjalai Ammal as co-vender, under Ex. B. 3 dated 1-12-1956 the remaining properties settled on the minor plaintiffs that is items 1 and 2 were conveyed to the first defendant for a sum of Rs. 3500. Anjalai Ammal had joined in these two conveyances as co-vender, since the share in the properties which she had retained has also been the subject of the conveyances. The consideration for the latter sale deed is made up of four items (1) a sum of Rs. 880 payable by the plaintiffs towards the mortgage in favour of Subramania Pillai, (2) a sum of Rs. 1620 the balance payable for the mortgage as paid by Anjalai Ammal (3) a sum of Rs. 130 cash received by Anjalai Ammal and (4) Rs. 870 left with the vendees to be paid on the minor settles be coming majors and executing a registered deed of release.
(3) The trial court refused to accept that it would not have been possible for Arumugha Padayachi to dispose of part only of the properties settled and pay off the mortgage to the extent of Rs. 880. There is a finding by the trial court that the vendees have not acted in good faith at all. As regards the sale under Ex. B-2, there can be no question at all about its validity. It is wholly beyond the powers of the guardian. As regards the sale for Rs. 3500 evidenced by Ex. B-3 the appellate court is of the view that Arumugha Padayachi would be well within bounds to sell items 1 and 2 and he had authority to sell the properties if needed for paying off the sum of Rs. 880 towards the mortgage. The appellate court has not considered the reasoning of the trial court in this regard that there was no necessity to sell the entirely of the properties. But the appellate court concurred with the trial court is holding that the alienation evidenced by Exs. B-2 and B-3 being both subsequent to the coming in to force of the Hindu Minority and Guardianship Act of 1956, the sale by Arumugha Padayachi who was not the legal guardian of the minor plaintiffs is invalid under the provisions of the said Act.
(4) Basing himself on the finding of the lower appellate court that Arumugha Padayachi would be justified under the provisions of the settlement deed to sell items 1 and 2 for payment of the mortgage amount learned counsel for the defendants contends before as to the applicability of the Hindu Minority and Guardianship Act of 1956 in the circumstances of the case is erroneous. He argues that Arumugha Padayachi has been specifically named and appointed guardian of the minor plaintiffs under the settlement Ex. A-1 and therefore he would be a legal guardian even under the said Act to effect the conveyance. It is submitted that S. 11 of the Act prohibits only a de facto guardian from disposing of or dealing with the property of a minor and that Arumugha Padayachi is not just a de facto guardian but a lawful guardian.
(5) At the outset is should be pointed out that the settlement deed does not purport to appoint Arumugha Padayachi as guardian of the properties which were settled on the minor plaintiffs. The document assumes Arumugha Padayachi to be guardian of the minors and only limits his powers of alienation. In my view, apart from the question of the validity of the appointment, the contention is not open on the terms of the settlement deed that by the instrument Arumugha Padayachi has been appointed as guardian of the minors for the properties settled. It must next be noticed that Anjalai Ammal the settler, so far as the minors are concerned, is a total stranger and the putative father, was himself not the lawful guardian of the minors at that time. The plaintiffs are admittedly the illegitimate children of Arumugha Padayachi by his concubine Marimuthu Ammal. In the plaint it is specifically mentioned that the mother of the plaintiffs was living. This plea specifically disentitling any guardianship of the minors in Arumugha Padayachi, has not been traversed in the written statement. It must therefore be taken that at all relevant periods the mother of the plaintiffs was alive. As pointed out in Mullah's Hindu law, 12th Edn at p. 681, the mother is the lawful guardian of her illegitimate children. This proposition is well established. No doubt there is no observation therein that where the father is known, he has a preferential right and the case is Mst. Prem Kaur v. Banarsi Das, ILR 15 Lah 630: (AIR 1934 Lah 1003) is relied on for this proposition. The case in question arose on an application by the putative father for the custody of the child by his regularly kept concubine. It did not relate to property and out court in T.S. Dorai Raj v. S.R. Lakshmi, AIR 1947 Mad 172 has expressed dissent from the view taken in the decision. But it is unnecessary to discuss the law prior to the Hindu Minority and Guardianship Act of 1956. This Act specifically supersedes the previously existing law and the overriding provision is found in S. 5 of the Act which runs thus:
"5. Save as otherwise expressly provided in the Act (a) any text, rule or interpretation of Hindi law or any custom or usage as part of that law in force immediately before the commencement of the Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it a inconsistent with any of the provisions contained in this Act".
Under S. 6 of the Act, the natural guardian of Hindu Minor in the case of an illegitimate boy, whether in respect of the minor's property is the mother and after the mother the father is the guardian. So on the Act coming into force, the mother of the minors can and is alone the guardian of the person and property of the minors. As pointed out already the defendants have not even traversed the allegation in the plaint that the mother of the minor plaintiffs is alive. It will seen that though the provisions of the Act are supplemental to the Guardian and Wards Act of 1890, the Act in statutory from crystallises as to whoa are the persons entitled to act as natural and testamentary guardians of Hindu Minor. The Act further imposes certain limitations on the power of the guardian in the matter of disposal and management of immovable property of a minor. Under the Act neither the natural guardian not the testamentary guardian can now, without the sanction of the court, mortgage, charge or sell or otherwise alienate any immovable property of a minor or lease any part of such property for a term exceeding more than one five years or for a term extending more than one year beyond the date of attainment of majority by the ward. Any disposal of immovable property by a natural guardian or testamentary guardian in contravention of the limitation set out in the Act is voidable at the instance of the minor.
(6) one vital and important change introduced in the Hindu law relating to minors that relating to the powers of a de f act guardian. Under the Hindu law the powers of a de facto guardian or a de facto manager of a Hindu minor's property to bind the minor's estate by alienations of immovable property of the minor in case of necessity or for the benefit of the minor's estate have been recognised in numerous decisions S. 11 of the Act now takes away these powers completely. After the commencement if the Act, no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. The contention of Mr. R. Gopalaswami Aiyangar to get over this interdict is that Arumugha Padayachi is not a de facto guardian but a guardian. Reference is made to S. 4(2) of the Act, where guardian is defined thus:
"Guardian means a person having the care of the person of a minor or of his property or of both his person and property and includes (i) a natural guardian, (ii) a guardian appointed by the will of the minor's father or mother (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards".
It is not claimed that Arumugha Padayachi is either a guardian appointed by the will of the minor's father or a guardian appointed or declared by the court. Nor does Arumugha Padayachi come under Section 4(vi). The argument is that there four sub-clauses are only indicated as included in the term "guardian" and therefore there can be a guardian outside there four sub-clauses. But the question is what is the character of such a guardian. As to who can be termed de facto guardian is found in a decision of the Division Bench of this court in Palani Gounden v. Vanjiakkal, 1956 Mad WN 257 at p. 258: (AIR 1956 Mad 476 at p. 477) where it is stated.
A de facto guardian is one who is not a legal guardian in the sense that he either a natural guardian or a testamentary guardian or a court guardian, but who being interested in the minor though a stranger, takes share of the management of the minor's property".
Section 4(2) of the Guardians and Wards Act, VIII of 1890, defines guardian as "a person having the care of the person of a minor or of his property, or of both his person and property". In Sithabai v. Radhabai, 36 Mad LJ 189: (AIR 1919 Mad 189) it is found that a de facto guardian is a guardian within the meaning of S. 4(2) of Act VIII of 1890--guardian means a person having the care of the person of a minor or of his property or both under the present Act also. Here admittedly Arumugha Padayachi has the care of the properties of the minor plaintiff. He is not a guardian in law, being neither a natural guardian or a testamentary guardian or a guardian appointed by court. He will therefore be a guardian by fact, that is a de facto guardian. So the interdiction under S. 11 of the Hindu Minority and Guardianship Act of 1956 would certainly apply to the acts of Arumugha Padayachi as guardian, de facto. Trevelyan in his law relating to minors recognises only three classes of guardians natural testamentary and appointed by court or a Court of wards.
(7) While the mother of the minor plaintiffs is alive and is the guardian, I doubt if at all it will open to a stranger like Anjalai Ammal to appoint a guardian for the minor's properties. As pointed out by the Lord Parker in Mrs. Annie Besant v. Narayaniah ILR 38 Mad 807: (AIR 1914 PC 41). "Among Hindus the father is the natural guardian of his children during their minority, but this guardianship is in the nature of a sacred trust, and he cannot therefore during his lifetime substitute another person to be guardian in his place". No doubt, the case related to the custody of a minor. In Chidambara Pillai v. Rangaswami Naicker ILR 41 Mad 561 at pp. 572, 573: (AIR 1919 Mad 1046 at p. 1051)(FB) Coutts Trotter J. observes.
"To me on the contrary it seems that to put a person a definite legal relation to property of which he is not the owner is a step which cannot be taken unless there is legal authority for taking it".
I take it that legal authority may be found in custom, judicial decisions or in statute. In the Full Bench case cited above, Seshagiri Aiyar J. observes:
"An examination of the citations shows that whereas the right of appointing a guardian for the person of an infant has been in some systems regarded as natural or the natural right of the parent, in none of them has it been stated that the right to appoint a guardian of property is common law right".
The question before the Full Bench in ILR 41 Mad 561 : (AIR 1919 Mad 1046)(FB) was as to the competency of an adult coparcener of a Mitakshara family to appoint a testamentary guardian to the coparcenary property of the minor coparcener and the competency was found against. In the present case, we are concerned with a person sui juris a stranger to the minor and her right to settle her properties appointing a guardian for the particular properties. Of course there will be no difficulty for the settlor to provide for the management of the properties during the minority of the settlees by a device of trust. Some of the observations of the Full Bench case above referred to have no doubt been the subject of some consideration in Konthalathammal v. Thangasami, ILR 46 Mad 873 at p. 886: (AIR 1924 Mad 327 at p. 333) where the power of a Hindu father to appoint by a will a guardian of the person of his minor children and their property not being joint family property, was recognised. But I have not been referred to any authority where a father or mother or other lawful guardian even, could during his lifetime, part with his or her powers as guardian by an instrument inter vivos. In ILR 46 Mad 873 at p. 886: (AIR 1924 Mad 327 at p. 333) Devadoss J. observes.
"If the father has not the right to appoint a guardian by will for his minor son by virtue of his power of disposition of his separate or self-acquired property, for it is a well-known principle of law that a testator cannot appoint a guardian for a minor legatee only by reason of the disposition in his favour, a testator can appoint trustees to hold property for a legatee and that does not depend upon the legatee being a minor. So the right to appoint a guardian for a minor son is to be sought for elsewhere then in the power to bequeath the property to him. Applying this principle the mere fact that a person gifts property to him".
Applying this principle, the mere fact that person gifts property to a minor will not entitle that person by reason of the factum of the gift only to appoint a guardian for the minor in respect of that property. Repeating what has already been stated it will be open to the donor to provide for the management of the property gifted by resorting to a trust. In the present case Anjalai Ammal is a stranger and it is inconceivable that she could another person with the character of a guardian of the property of the minors, when she herself is not one. In Dhanpat Ram v. Prem Singh 12 Ind Cas 452 (Punj) it is held that a man has no power nephew under the Hindu law.
(8) In the light of the above discussion it is clear that Arumugha Padayachi cannot claim to be either guardian by instrument or natural guardian. Reference was made to a decision in Thangapandian v. Kachu Bomma where the "instrument" came up for
consideration. The question was whether the appointment of the natural father as guardian to his son who had gone out in adoption under a consent decree in a suit could be considered to be an appointment of a guardian by instrument and this court rejected the claim that the appointment of a guardian under the circumstances was an appointment under an instrument. This court held that at least he can be regarded as a de facto guardian. It was observed:
"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 genres with proceeding word "will". For these reasons 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"
Learned counsel contends on the authority of this decision that a guardian could be appointed by a deed of gift. The reference to the deed of gift in the aforesaid decision must be taken in its context. All that is meant is that a testamentary guardian could be appointed by a deed which may in fact be a deed of settlement or deed of gift. That does not mean that there could be a transference of guardianship by deed even during the lifetime of the lawful guardian. That decision is far from authority for the position that any body and everybody could by instrument when the lawful guardian is alive, appoint another person as guardian of property of the minor for the reason only the property of the minor for the reason only the property is gifted by the maker of the instrument. It indicates just the contrary. Trevelyan points out at pages 65 of the Fifth Edn of his law relating to minors that appointment by deed is in its mature testamentary. A lawful guardian may have to approach the court if he wants to relinquish his guardianship during his lifetime. But his powers as the guardian of property of a minor could nit be taken away even if he should be willing by a third party without orders of court. That apart on my reading of the settlement deed, Anjalai Ammal does not purport to appoint Arumugha Padayachi as guardian, She has only assumed him to be the guardian. In these circumstances, this decision does not help the appellants.
(9) In the result it must be held that the alienation by Arumugha Padayachi of the suit properties which had been settled on the minors by Anjalai Ammal are void and cannot bind the minors.
(10) A decree for past mesne profits has been awarded and assessment of future mesne profits is left open for separate proceedings. Learned counsel submits that in the present case there was a mortgage decree against the minors and if the mortgage had brought the properties to sale and sought to sell away the entirely of the properties. Arumugha Padayachi could have maintained no legal objection to the same. It is submitted that it was in these circumstances, the conveyance had been resorted to. It is pointed out that it was nobody's case that the sale was at an undervalue. In the circumstances, learned counsel submits that the first defendant could not be called upon to account for past mesne profits. There is something to be said for this contention.
(11) The lower court has directed the plaintiffs to deposit into court a sum Rs. 880 with interest thereon at 51/2 percent per annum from 13-3-1957 till the date of deposit in my view it will be just and fair to pass an order in the following terms in respect of mesne profits so far as the first defendant is concerned.
(12) The first defendant shall deposit into court for payment to the plaintiffs as interest on the sum Rs. 870 which he had retained an amount calculated at 51/2 per cent per annum of Rs. 870 from 1-12-1958 till the date of deposit by the plaintiffs of the sum of Rs. 880. The order of the lower appellate court in regard to the sum of Rs. 880 to the extent only of the provision for payment of interest thereon from 13-3-1957 till deposit is set aside. The plaintiffs will be entitled to mesne profits on their share in the properties conveyed to the first defendant under Ex. B-3 only from the date of deposit by the plaintiffs of the sum of Rs. 880 till the plaintiffs are given possession of properties. Subject to this modification of the decree against the first defendant the second appeal it dismissed. The parties will bear their respective costs in this court. No leave.
(13) Order accordingly.