1. This appeal raises an interesting question regarding the position of a person who starts to intermeddle with the estate of a minor and involves a decision as to what it is that first gives to that person the status of a de facta guardian. The appellant is the plaintiff who sued to recover a legacy of Rs. 1,700 due to her under the will of her deceased husband. The first defendant is the sister of the deceased husband and executrix of his will. The second defendant is the mother of the plaintiff and the alleged de facto guardian. The third defendant is the brother of the deceased husband. The facts as found by the lower Courts are as follows: The plaintiff was 15 years old when her husband died on or about 10th of February, 1918. At that time she had been living with her husband for about a year. Shortly after the death of her husband, her mother, the second defendant who does not contest the suit and has not given evidence, demanded on behalf of her daughter, the plaintiff, the money and lands due to the plaintiff under the will of the husband and at the same time threatened that, if payment was not made at once, the plaintiff would not be allowed to take part in the funeral ceremonies the importance of which was recognised by all parties. Under this pressure an arrangement was made whereby on the 22nd of February, 1918, that is, approximately 12 days after the death of the husband, the first defendant's husband executed a promissory note, Ex. I, for not only the legacy of Rs. 1,700 but also for an amount of Rs. 408 which is described as interest on this legacy, apparently based on the identification of this legacy, with the katnam present to the deceased husband paid by the plaintiff's parents at the time of the marriage, interest being calculated from the date of the giving of the present. The promissory note also covered an amount due to the minor for paddy and the promisor undertook to pay interest at 12 per cent. This was on the 22nd of February. At the same time the plaintiff's mother received the lands bequeathed to the plaintiff and gave a receipt in token of the discharge of the legacy in Ex. II. Thereupon the ceremonies went on and the plaintiff stayed in her mother-in-law's house for three months, a period which is more or less obligatory by the custom of the community. Just at the end of this period, two payments were made under Ex. I whereby the debt incurred by the first defendant's husband in discharge of the legacy to plaintiff was wiped off by payment to the plaintiff's mother. It must be observed that the actual discharge of the legacy was not by these cash payments but by the receipt dated 22nd February, 1918, Ex. II. Admittedly after the cash payments had been made, the plaintiff left the house of her mother-in-law and went to live under the protection of her mother, the second defendant, and there she stayed for the rest of her minority. Although the plaintiff is not now living with her mother, it is found by the lower Courts that she only left her mother's house mainly for the purpose of the present case and that there is no real conflict between the two. It is also found as a matter of fact that ever since the plaintiff left the house of her mother-in-law, her affairs have been managed by her own mother, the second defendant.
2. The question is whether, on these facts, the first defendant, having arranged for the discharge of the legacy by delivery of the lands to the plaintiff's mother and by execution of the promissory note in her favour which promissory note was shortly afterwards discharged by the first defendant's husband, can be made to pay the legacy once more to the plaintiff herself. There is no finding of fact that the money paid to the plaintiff's mother has in actual truth been received by the plaintiff herself. Both the learned Judges of the Courts below apppear to have conjectured that this may be so. They however base their decisions on the position that the second defendant was the de facto guardian who could give a good discharge to the first defendant and they have given a decree to the plaintiff against her mother only on the footing that the money is or should be with the mother and can be claimed only from her. I have therefore to decide whether the second defendant was on the date when she gave the receipt, Ex. II, that is to say, on 22nd February, 1918, the de facto guardian and whether she could give a valid dischage to the executrix in respect of the legacy to the plaintiff.
3. My attention has been drawn to one case in which a learned Judge of this Court has expressed a doubt as to the capacity of a de facto guardian to give a valid discharge on behalf of the minor Rajaram v. Kothandapani A.I.R. Mad. 280. With the greatest respect to the learned Judge who made the observation referred to, it seems to me essential to hold that a de facto guardian who is validly in charge of the minor's affairs may for the benefit of that minor give a good discharge in respect of a debt due to the minor. There is a long line of authority beginning from Hunoomanpersaud's case (1856) 6 M.I.A. 393 for the view that a de facto guardian of a Hindu minor can do those acts in the interests of the minor which can be done by a de jure guardian of that minor; and I am not aware of any infirmity of the position of the de facto guardian of the minor - once it has been established that he is the rightful guardian though not appointed by any process of law - disentitling him to do those acts which a de jure guardian can validly do. The difficulty in the present case however is that it raises the question of the first point of time at which the mother can be said to have begun to be the de facto guardian. The phrase 'de facto guardian', necessarily connotes a guardian who is such a guardian as a result of something which has happened previously. 'De facto' literally means 'from that which has been done' and this basic conception of past acts resulting in a present status has led to at least two decisions in which it has been laid down that a person becomes a de facto guardian as a result of a course of conduct. Each of these cases arose out of an isolated act of alienation of the minor's property purporting to have been done by a person treated as a de facto guardian in that particular transaction only. The first case is that of Harilal Ranchhod v. Gordhan Keshav I.L.R.(1927) 51 Bom. 1040 wherein Crump, J., defines a de facto guardian as a person:
Who, being neither a legal guardian nor a guardian appointed by Court takes it upon himself to assume the management of the property of the minor as though he were a guardian.
4. He further observes that the term:
Implies some continuity of conduct, some management of the property beyond the isolated act of sale which comes into question.
5. Following that decision we have the decision of a Bench of this Court in Chinna Alagumperumal Karayalar v. Vinayagathammal : AIR1929Mad110 , which related to an alienation of a minor widow's property by the widow's mother purporting to act on behalf of her daughter, which transaction was the only act done on behalf of the minor by the mother and it was done at the time while the minor was living under the protection of her husband's step-brother in whose favour the sale impeached was carried out. This was clearly a case in which on the facts there was grave reason to suspect that the mother of the minor had been used to help in a transaction which was not in the interests of the minor. On page 866 of the above report, the learned Judges make certain general observations on the position of a de facto guardian. It is said that:
A de facto guardian is one who looks after the property of the mino and generally acts in his interests for the time being. A fugitive or an isolated act of a person with regard to the minor's property would not make him a de facto guardian of the minor, nor would staying with a minor for a time make him a de facto guardian. There must be a continuous course of conduct as guardian of a minor in regard to his property in order to enable one to become a de facto guardian. The length of the period required to constitute one a de facto guardian would depend upon the circumstances of each case. The first act of intermeddling with the estate of a minor would not be the act of a de facto guardian, if he had not become one before the act, nor would the subsequent management of the estate of the minor by such person make the first act, which is one of alienation, the act of a de facto guardian.
6. Now with reference to this last sentence, it must be observed that, on the facts of the case before the Bench, these observations regarding the first of a series of acts of management must be treated as an obiter dictum for it appears that in that case there was no subsequent course of conduct from which guardianship could be implied. At the same time it does seem to me that, if the position of a de facto guardian rests only on acts of intermeddling, if it is a position which has only to be built up by a series of acts, the first of those acts would, by itself, not be an act of a person who was already in the position of a de facto guardian before that act was done. A de facto guardian is one who is already a guardian owing to something which has happened previously. To hold otherwise would be tantamount to admitting that a person buying property from a minor's estate or paying debts to the minor's estate can recognise anybody he likes with impunity as the guardian, provided that the person comes to be recognised as the guardian de facto of the minor subsequently. At the same time there are obvious difficulties in the way of the application of the dictum, as a literal statement of a rule of law, to such a case as the present. One can conceive of circumstances in which the first formal act of the de facto guardion would be one which the courts might rightly recognise as binding on the minor. I refer to a case in which the position of the de facto guardian has been recognised in the family and by those mainly concerned before any intermeddling act of a formal nature affecting the minor has been accomplished. Surely the question must be whether in the eyes of the family of the minor and those interested in the welfare of the minor, the person who makes an alienation or receives a payment is, at the time of the transaction impeached, regarded by common consent as the person who is entitled to act on behalf of the minor. If there is such a general recognition, then in my opinion, when once the person recognised has consented to act as guardian, it would not be necessary to wait for a series of transactions in the capacity of guardian in order to clothe that person with authority to represent that estate. The question is essentially one of fact. If the intermeddler is, as is contemplated in the case referred to in Harilal Ranchhod v. Gordhan Keshav I.L.R.(1927) 51 Bom. 1040 a self-constituted guardian who comes into being for no other purpose than to carry out an isolated transaction which transaction is of very doubtful advantage to the minor's estate, then there could be no such general recognition of the alleged guardian as would clothe him with authority and clearly there could be no such course of conduct as might take the place of or supplement the general recognition.
7. Applying this reasoning to the facts of the present case, I feel some difficulty in following the process by which the learned trial Judge has come to the conclusion that the receipt of the legacy by the mother of the plaintiff was in fact not the first act of guardianship but the third or fourth act. So far as I have been able to gather, the first transaction carried through by the plaintiff's mother on behalf of her daughter was on the 22nd of February, 1918, when she gave a discharge on receipt of the promissory note and on transfer of the land. The fact that the cash due under the promissory note was paid only at a later date was to my mind immaterial, for the discharge of the legacy was given in return for the execution of the promissory note which provided that the payment of the promised amount would be made in due course. Now can it be said that when this receipt (Ex. II) was given, the plaintiff's mother was legally entitled to give a discharge? In dealing with this question, one should remember the relationship of the parties, the age of the plaintiff, the surrounding circumstances and the attitude of the husband's relatives towards the claim of the plaintiff's mother. The plaintiff was a young girl who had not been with her husband for very long and who had been almost completely excluded from the considerable estate left by her husband. Her legal guardian, the mother-in-law, does not appear to have done anything to dispute the right of the plaintiff's mother to protect her interests. The action of the plaintiff's mother in vigorously pressing for payment and for transfer of the land seems to have resulted in the payment of considerably more than could be demanded on the strict terms of the legacy. When payment was demanded by the plaintiff's mother, it appears to have been recognised by the family in general that she was the person entitled to make the demand. This is clearly not a case in which there was a conspiracy to defraud the minor. The fact that the plaintiff's mother was regarded as the right person to protect the minor's interest is shown by the way in which immediately after the period of three months during which she had to live with her mother-in-law, she went to live with her mother, stayed with her thereafter and entrusted the whole of the management of her affairs to her mother. I am quite prepared to concede that if the plaintiff's mother was not in the position of the de facto guardian at the time when she gave the discharge, any subsequent accession of authority would not clothe her first act with a character with which it was not at the time invested. But I do think we are entitled to look at what happened afterwards in order to come to the conclusion, firstly, as to the state of the mind of the mother in making the demand and secondly, as to the way in which the plaintiff's mother was regarded by the rest of the family, who after all are the persons mainly concerned in the matter of the guardianship. There is nothing in the facts in the case to raise a doubt as to the attitude of the 2nd defendant to her daughter, the plaintiff, nor to suggest that she was not in fact treated as the guardian by the rest of the family. I am of opinion that the materials are sufficient to warrant the conclusion that she was so treated at the time when she made the demand on behalf of her daughter for payment of the legacy and that the payment of this legacy was not merely the first of a series of transactions which eventually constituted her the de facto guardian. This seems to be a case in which the position of the plaintiff's mother as de facto guardian was recognised by the relatives from the beginning and was not the result of any long course of conduct. It seems to be undesirable to withhold from a person who has reasonably been recognised by the family as entitled to represent the minor, the power to do those acts which are necessary for the minor and beneficial to her. I therefore agree with the lower Courts in holding that the plaintiff's mother was the de facto guardian entitled to receive this legacy, though I would rest the decision not so much on the theory that the actual receipt of the money was one of the later instances of a course of conduct which clothed her with the position of the guardian, but rather on the fact that she was from the beginning after the death of the husband recognised by the family as the de facto guardian of the minor and that she had been recognised in that capacity and had assumed that capacity with the consent of all concerned before the payment was made to her.
8. In this view, I would dismiss this appeal with costs.
9. Leave to appeal is granted.