1. Defendants 1 to 3 are the appellants. the suit was filed by the first respondent for a declaration of title of the plaintiff and the 6th defendant to the suit properties and for setting aside the sale deeds dated 7-8-1957 and 15-3-1961, executed in favour of defendants 1 to 3 by their guardian. The suit properties originally belonged to one Mangalammal, whose son and daughter are the plaintiff and the 6th defendant. She died on 26-1-1956 leaving behind her husband and two minor children, who are the plaintiff and the 6th defendant. She died on 26-1-1956 leaving behind her husband and two minor children, who are the plaintiff and the 6th defendant. She bequeathed the suit properties under a registered Will dated 5-11-1955 in equal moieties in favour of her tow children, the plaintiff and the 6th defendant, and under the same Will, she also appointed her brother one Kalyanarama Iyer as guardian for the minor children and the properties with a direction to be in management of the suit properties, educate the children, get them married and divide whatever properties that remained at the time when the minor children became majors and put them in possession of the same. While the said Kalyanarama Iyer was in such management as guardian of the minors, he sold the properties to the appellants herein under two sale deeds dated 7-8-1957 and 15-3-1961. The plaintiff, after he attained the age of majority, has filed the suit as already stated for a declaration of his title and for setting aside these two sale deeds. It was contended by him that the sale was not supported by any necessity, nor was it beneficial to the minors. It was further contended that the Will itself did not authorise the guardian to sell the property, and that in any case, as a testamentary guardian he had no power of alienation without the prior sanction from a competent court. At the time of the argument it was also contended on behalf of the plaintiff that a Hindu mother had no right to appoint a guardian by Will, especially when the father of the minor children who is the natural guardian was alive. It may be mentioned that Ekambaram Iyer, the father of minor plaintiff and the husband of Mangalammal was alive both at the time when the Will was executed and also at the time when the will was executed and also at the time when Mangalammal died on 26-1-1956. Both the Courts below concurrently held that the sale was not for necessity or binding purposes, and that it was also not for the benefit of the estate of the minors. It was also held that since the natural guardian of the minors was alive, Mangalammal had no authority to appoint a guardian for the minors. On the construction of the Will the courts below came to the conclusion that there is no express power of alienation conferred on the guardian, and that since he is a testamentary guardian under S. 9(5) read with S. 8 of the Hindu Minority and Guardianship Act, 1956 he could not sell the property without the prior sanction of a court. In that view, the courts below decreed the suit declaring the title of the plaintiff and the 6th defendant to the suit properties and gave also a decree for possession directing the defendants to deliver possession to the plaintiff. It is against this judgment and decree the defendants 1 to 3 have filed the appeal.
2. The learned counsel for the appellants submitted that there is no prohibition under the Hindu Law against a Hindu woman appointing by Will a guardian for her minor children in respect of the properties bequeathed by her. Per contra, the learned counsel for the respondents contended that a Hindu mother has no power to appoint a guardian by Will whether in respect of the testator's separate property bequeathed under the Will to the minor. In support of this contention the learned counsel for the respondents relied on the following passages in Mulla and Mayne on Hindu Law:
Mulla, p. 532--"A Hindu father may, by word of mouth or by writing, nominate a guardian for his children, so as to exclude even the mother from the guardianship. The mother, however, has not the power to appoint a guardian by Will but the court may have regard to her wishes, if any, expressed in her Will."
"The power of testamentary guardian to deal with property belonging to his Ward is subject to the restrictions imposed by the Will. The father can, by his Will appoint a guardian both of the person as well as the property of his minor daughter. On the marriage of the daughter, the husband becomes the guardian of the person, but the testamentary guardian continues to be the guardian of the property. As regards guardianship of joint family property, there is a conflict of opinion whether the father of a joint family consisting of himself and his minor sons has power to appoint a guardian by his Will of the joint property during the minority of the sons. In an earlier Bombay case, it was held that he had no such power. In a later Bombay case, it was held that he had the power to appoint such guardian and also to authorise him to alienate the joint property, and that, where an alienation was made, it was binding on the minor sons, provided it was within the scope of the authority conferred upon him by the Will. a Full Bench of the Bombay High Court has now adopted the earlier view. In Madras, it has been held by a Full Bench that it is not competent to the manager of a joint Hindu family, whether he is the father or uncle or an elder brother, to appoint a testamentary guardian to the joint property. It is submitted that the father has no power to appoint a guardian by his Will of joint family property. At the moment of his death the property passes by survivorship to his minor sons, and he cannot by any testamentary direction authorise any person to deal with it during the minority of the sons. But it has been held by the same High Court that if the testator has no sons, he may by his Will authorise his widow to adopt a son to him, and appoint a guardian to manage his estate during the minority of the adopted sons. The decision would no doubt be correct if the property disposed of by Will was the self-acquired property of the testator. But it would be questionable, if the property disposed of was ancestral."
3. Mayne on Hindu Law and Usage at page 287 says--
"A Hindu father can by Will appoint a guardian of the person of his child, even to the exclusion of the mother, its natural guardian; a Hindu mother cannot."
He relied also on the decision in Venkayya Garu v. Venkatanarasimhalu, (1898) ILR 21 Mad 401, cited as an authority for this purpose in these two text books. In this case it was held by a Division Bench of this court that a Hindu mother had no authority to appoint a guardian for her son by Will. The judgment is a short one and the facts are not stated therein. I have called for the records and verified the facts. It is seen from the records that a Hindu widow in that case by her Will dated 19-7-1896 appointed her brother as guardian of person and property of her minor adopted son who had inherited the property of his adoptive father. Thus the properties of the minor in respect of which the guardian was appointed is an ancestral property in the hands of the minor. It is with reference to this, this court held that the Hindu widow has no authority to appoint a guardian by Will. The decision is, therefore, not an authority for the proposition that a Hindu mother cannot appoint a guardian even in respect of her own properties which she bequeathed under the Will to her son. In fact, a Full Bench decision in Chidambaram Pillai v. Rangasami Naicker, ILR 41 Mad 561: (AIR 1919 Mad 1046), held that it was not competent to the manager of a joint Hindu family, whether he is the father or uncle or an elder brother, to appoint a testamentary guardian to the joint property. In Konthalathammal v. Thangasami, ILR 46 Mad 873: (AIR 1924 Mad 327) a Division Bench considered the question whether a Hindu father could appoint by Will a guardian for the person and separate property of his minor children. It was held that he was competent to appoint by Will a guardian of the person of his minor children and of the property not being joint family property. Though the facts in Konthalathammal v. Thangasami, ILR 46 Mad 873: (AIR 1924 Mad 327) related to the competency of a father to appoint by Will a guardian for the minor children in respect of the property not being joint family property, the ratio of that judgment clearly applies even to a case where the appointment was by a Hindu mother or a widow. The learned counsel for the respondent purporting to rely on the decision in Rajalakshmi v. Ramachandra, argued that even so, if a natural
guardian was alive, a Hindu mother would have no authority to appoint a guardian by Will even in respect of the separate property. In that case, a Hindu woman executed a settlement by which she settled her separate properties in favour of certain minor children whose putative father was her husband and appointed her husband as the guardian. It was in evidence that the mother of the children was alive and since she was the natural guardian in respect of her illegitimate children, the question for consideration was whether the appointment of the guardian was valid. Natesan J. was prepared to hold that in cases where there is a natural guardian a Hindu mother has no right to appoint a guardian even in respect of the separate property. But as rightly pointed out by the learned counsel for the appellant, the observations of the learned Judge is obiter and, in fact, in that case it was held that the lady did not appoint her husband as guardian, but he was only acting as a de facto guardian. It may also be mentioned that Natesan J. proceeded on the assumption that in the absence of a natural guardian, a Hindu mother is entitled to appoint a guardian for the minor children by Will in respect of the separate properties. The ratio of the judgment in Konathalathammal v. Thangasami, ILR 46 Mad 873: (AIR 1924 Mad 327) shows that though the testator's right to appoint a guardian for minor legatees does not flow merely by reason of his power to bequeath the property, there is nothing in the Hindu Law to prevent a Hindu father appointing a guardian for the person of his minor son even though there is a natural guardian in the form of a mother. I do not find any reason why a different law should be laid down in respect of the powers of a Hindu mother in regard to the same. In fact, it is well known that ancient Hindu Law made no provisions for execution of Wills either for disposition of the property or for appointment of guardians. It is only under the Hindu Wills Act. 1870, such a power was recognised. That Act makes no distinction between a Hindu father and a Hindu mother in the matter of appointment of guardians to, separate property of the testator. I am, therefore, of opinion that irrespective of the fact of existence of a natural guardian, a Hindu mother is entitled to appoint a guardian for the minor children in respect of her separate property bequeathed to the minor under a Will. That takes us to the next question whether the testamentary guardian was entitled to sell the property without the prior sanction of a competent court.
4. The learned counsel for the appellant relying on S. 28 of the Guardians and Wards Act, 1890, argued that unless there is a prohibition or restriction in the Will under which the guardian was appointed, restricting or prohibiting the guardian from selling the property, the testamentary guardian was entitled to deal with the property as he thinks fit and the sale could be questioned only on the ground of fraud or collusion, and not on the ground that there was want of necessity or it was not beneficial to the minor. In other words, in case of a sale by a testamentary guardian, the only question for consideration is whether the transaction was real and not vitiated by fraud or collusion. The learned counsel for the appellants is well founded in his contention that the power of a testamentary guardian is absolute and the only restrictions are those that could be found in the testament itself. In construing a provision in S. 307 of the Indian Succession Act, which contained a provision similar to S. 28 of the Guardians and Wards Act, this court in the decision reported inFoulkes v. Suppan Chettiar, held that the powers of the
executor or administrator under that section to dispose of the property of a deceased vested in him is absolute, subject only to the condition that the sales were for adequate consideration, that they were not nominal transactions and were not vitiated by fraud or other similar effect. In fact, the learned counsel for the respondent did not demur this proposition, but contended that S. 28 would apply only to a case of sale effected by a guardian prior to the commencement of the Hindu Minority and Guardianship Act, 1956, but in respect of a sale which was effected subsequent to that enactment. Section 28 is not applicable and only the provisions of the Hindu Minority and Guardianship Act, 1956, would apply even though the testamentary guardian was appointed before the commencement of the Act. the learned counsel for the respondent is well founded in this contention. 'Guardian' is defined in S. 4(b) of the Hindu Minority and Guardianship Act (hereinafter referred to as the Act) to mean 'a person having the care of the person of a minor or of his property or of both his person and property' and includes among others, guardians appointed by Will of the minor's father or mother. The definition shows that a guardian appointed by Will of a minor's mother even if it was before coming into force of the Act would be a guardian within the meaning of the that Act and his rights and obligations would be governed by the provisions of the Act. Section 9(5) dealing with the powers of a guardian so appointed by Will states that he has the right to act as the minor's guardian after the death of the minor's mother and to exercise all the rights of a natural guardian under the Act 'to such extent and subject to such restrictions, if any, as are specified in this Act and in the Will'. One of the restrictions imposed on a natural guardian in respect of the sale of minor's property is contained in S. 8(2) which requires the previous permission of the court for selling the minor's property. The testamentary guardian, therefore, could not sell the property without the prior sanction of the court. This is so even though S. 28 of the Guardians and Wards Act authorised the testamentary guardian to sell the property, as under s. 5(b) of the Act any other law in force immediately before the commencement of the Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. The learned counsel for the appellant strongly relied on the provisions of S. 2 and contended that any other law in force immediately before the commencement of the Act in S. 5(b) would not include the Guardians and Wards Act, 1890, as that was expressly saved under S. 2. The provision under S. 2 relied on by the learned counsel reads as follows--
"The provisions of this Act shall be addition to, and not, same as hereinafter expressly provided, in derogation of the Guardians and Wards Act, 1890."
Under S. 5(b), the Act supersedes any other law in force before it came into operation in so far as such legislation is inconsistent with the provisions of the Act. The result is that immediately an the coming into force of the Act, the law of guardianship hitherto applicable to Hindus, whether by virtue of Central or State legislation, or any text, rule or interpretation of Hindu Law, ceases to have effect with respect to all matters dealt with in the Act. Section 28 of the Guardians and Wards Act, in so far as it authorised a testamentary guardian appointed by a Hindu mother and an unlimited power of sale is inconsistent with the provisions of S. 9(5) read with S. 8 of the Act. On the clear language used in S. 5(b), therefore, S. 28 will cease to have any effect in so far as the powers of the Guardian to dispose of the minor's property was concerned without the prior sanction of the court. Section 6 of the Guardians and Wards Act saves from its operation the personal law of minors and does not purport to lay down the law in respect of the powers of the natural and testamentary guardians under such personal law. Since the present Act is primarily intended to amend and codify certain parts of the law relating to minority and guardianship among Hindus and to impose certain restriction on the powers of such guardians, any provision in any other law inconsistent with the provisions of the Act shall, therefore, cease to have effect and S. 2 could not be interpreted as saving even those inconsistent provisions. Only in respect of those matters which are not provided in the Act, the Guardians and Wards Act, 1890 would be applicable. The ratio of the decision of this court in Swaminathan v. Angayarkanni Ammal, also shows that the provisions of the
Guardians and Wards Act. would apply only when there is no express provision in the Act to the contrary. I am, therefore, of opinion that the testamentary guardian had no power to execute the sale without the prior sanction of the court. Even so, the learned counsel for the appellants contended that the plaintiff-respondent is entitled to a decree only in respect of his share of the suit properties and he is not entitled to recover possession of the share belonging to the 6th defendant. This argument was advanced on the ground that the 6th defendant to whom moiety was bequeathed under the Will did not question the sale and also did not join in the filing of the suit along with the plaintiff, or supported the case of the plaintiff even as a defendant. It is seen from the Will executed by Mangalammal that the bequests in favour of the plaintiff and the 6th defendant are as co-tenants and each was entitled to a moiety in the property bequeathed. In fact, the guardian was directed to put ion possession of one-half of the properties to each of them on their attaining the age of majority. Therefore, the plaintiff could not ask for a declaration of title of the 6th defendant to the suit property, or for recovery of possession of the same. The plaint does not contain any statement as to the ground on which the plaintiff claimed the entirety of the same. He only stated that the property belonged to the plaintiff and the 6th defendant did not question the sale even though she had become a major by the time by the suit was filed and did not also file a written statement questioning the sale or supporting the plaintiff and remained ex parte, the suit could not be decreed in respect of her share. the decree will have therefore to be modified declaring the right of the plaintiff to one-half of the suit properties and for possession of the same. Since all the parties who are interested in the property are before the court, there will be a preliminary decree for partition and separate possession of the plaintiff's one-half share. The learned counsel for the plaintiff pointed out that the 4th defendant who is the alienee of a portion of the land from defendants 1 to 3 conceded the right of the plaintiff and that, therefore, the property conveyed to the 4th defendant should be taken outside the partition and to be allotted to the plaintiff separately. This claim could not be permitted, because what the 4th defendant conceded should be construed as the plaintiff's right to a half share and for recovery of possession and not with reference to the property sold to him. It was then contended by the learned counsel for the respondent that the 5th defendant who is another alienee from defendants 1 to 3 had nor preferred any appeal to the lower appellate court or this court for the decree or possession of the entirety of the suit property and that, therefore, the property which was the subject-matter of sale to the 5th defendant could not be dealt with in this second appeal. this contention could not be accepted. Defendants 1 to 3 as vendors are bound by the warranty of title to establish the title, and, therefore, though the 5th defendant did not file an appeal or question the decree, any decree obtained by the defendants 1 to 3 will ensure for the benefit of the 5th defendant. The result of it is, the plaintiff will be entitled only for a preliminary decree for partition and separate possession of one-half of the suit properties. There will accordingly be a decree. The mesne profits in respect of one-half share of the plaintiff would be determined in the final decree proceedings. The second appeal is partly allowed. The parties will bear their respective costs. No leave.
5. Appeal partly allowed.