M. Natesan, J.
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 Exhibit A-1 dated 25th October, 1955, settled the suit properties on the minor plaintiffs. The deed of settlement refers to Arumugha Padayachi as their protector, father and guardian, and it 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 Padayachi. Certain conditions are imposed under the deed enjoining the settlees 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 the 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 of the properties. The properties are valued at Rs. 1,500 and there is specific prohibition against any alienation of the properties except to the extent of and for the purposes provided in the deed and 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 mortgagee the sum of Rs. 880 as provided under the settlement deed and the mortgagee filed the suit, O.S. No. 334 of 1956 on the file of the District Munsif's 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. 200 on 2nd June, 1956, and later, on 1st December, 1956, along with Anjalai Ammal he sold the items for a sum of Rs. 500 under Exhibit B-2. It is the finding that no portion of the consideration went in discharge of the mortgage in favour of Subramania Pillai. Again with Anjalai Ammal as co-vendor under Exhibit B-3 dated 1st December, 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. 3,500. Anjalai Ammal had joined in these two conveyances as co-vendor, 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. 1,620. 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 settlees becoming majors and executing a registered deed of release.
3. The trial Court refused to accept the plea 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 Exhibit B-2 there can be no question at all about its invalidity. It is wholly beyond the powers of the guardian. As regards the sale for Rs. 3,500 evidenced by Exhibit B-3 the appellate Court is of the view that Arumugha Padayachi would be well within the bounds to sell items 1 and 2 as 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 ncecessity to sell the entirety of the properties. But the appellate Court concurred with the trial Court in holding that the alienations evidenced by Exhibit B-2 and Exhibit B-3 being both subsequent to the coming into 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 me that the view of the Courts below 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 Padyachi has been specifically named and appointed guardian of the minor plaintiffs under the settlement Exhibit A-1 and therefore he would be a legal guardian even under the said Act to effect the conveyance. It is submitted that Section 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 it should be pointed out that the settlement deed does not purport to appoint Arumugha Pachayachi 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 settlor, 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 Mulla's Hindu Law, 12th Edition, at page 681, the mother is the lawful guardian of her illegitimate children. This proposition is well established. No doubt there is an observation therein that where the father is knowm, he has a preferential right and the case in Mussammat Prem Kaur v. Banarsi Das I.L.R. Lah. 630, 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 our Court in Dorai Raj v. Lakshmi : AIR1947Mad172 , 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 Section 5 of the Act which runs thus:
5. Save as otherwise expressly provided in the Act:
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this 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 is inconsistent With any of the provisions contained in this Act.
Under Section 6 of the Act the natural guardian of a Hindu minor in the case of an illegitimate boy, whether in respect of the minor's person or 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 be 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 be seen that though the provisions of the Act are supplemental to the Guardian and Wards Act of 1890, the Act in statutory form crystallises as to who are the persons entitled to act as natural and testamentary guardians of a Hindu minor. The Act further imposes certain limitations on the powers of the guardian in the matter of disposal and management of the immoveable property of a minor. Under the Act neither the natural guardian nor the testamentary guardian can now, without the sanction of the Court, mortgage, charge or sell or otherwise alienate any immoveable property of a minor or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date of attainment of majority by the ward. Any disposal of immoveable property by a natural guardian or testamentary guardian incontravention of the limitations 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 is that relating to the power of a de facto 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 immoveable' property of the minor in case of necessity or for the benefit of the minor's estate have been recognised in numerous decisions. Section 11 of the Act now takes away these powers completely. After the commencement of 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 Iyengar to get over this interdict is that Arumugha Padayachi is not a de facto guardian but a guardian. Reference is made to Section 4(b) 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(iv). The argument is that these four sub-clauses are only indicated as included in the term 'guardian' and therefore there can be a guardian outside these four such clauses. But the question is what is the character of such a guardian. As to who can be termed a de facto guardian is found in decision of the Division Bench of this Court in Palani Goundan v. Vajiakkal (1965) 1 M.L.J. 498 : I.L.R. 1956 Mad. 1062 where it is stated:
A de facto guardian is one Who is not a legal guardian in the sense that he is either a natural guardian or a testamentary guardian or a Court guardian, but who being interested in the minor though a stranger, takes charge 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 Sitha Bai v. Radha Bai 36 M.L.J. 189, it is found stated that a de facto guardian is a guardian within the meaning of Section 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 plaintiffs. 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 in fact, that is a de facto guardian. So the interdiction under Section 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 be open to a stranger like Anjalai Ammal to appoint a guardian for the minor's properties. As pointed out by Lord Parker in Beasant v. Narayaniah I.L.R. Mad. 807 : L.R. 41 IndAp 314 : 27 M.L.J. 30 '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 : (1918)34MLJ381 , Coutts Trotter, J., observes:
To me on the contrary it seems that to put a person in a definite legal relation to property 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 Ayyar, 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 the 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 a common law right.
The question before the Full Bench in Chidambara Pillai v. Rangaswami Naicker : (1918)34MLJ381 , 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 coparcenar 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. Thangasamy 45 M.L.J. 481 : I.L.R. Mad. 873 , 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 Konthalathammal v. Thangaswamy 45 M.L.J. 481 : I.L.R. Mad. 873 , Devadoss, J., observes :
If the father has not the right to appoint a guardian by will for his minor son by virtue of the 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 than in the power to bequeath the property to him.
Applying this principle, the mere fact that a 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 clothe another person with the character of a guardian of the property of the minors, when she herself is not one. In Dhanpat Ram v. Premsingh 12 Ind.Cas. 452, it is held that a man has no power to appoint a guardian of his minor 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. Kuchu Bomma (1966) 1 M.L.J. 175 , where the word '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 Section 39 as ejusdem generis with the preceding 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 a 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 life time of the lawful guardian. That decision is far from authority for the position that anybody 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 is gifted by the maker of the instrument. It indicates just the contrary. Trevelyan points out at page 65 of the Vth Edition of his Law relating to Minors that appointment by deed is in its nature 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 not 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, Anajalai 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 Padayaehi 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 mortgagee had brought the properties to sale and sought to sell away the entirety 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 of Rs. 880 with interest thereon at 5 per cent, per annum from 13th March, 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 of Rs. 870 which he had retained, an amount calculated at 5 per cent, per annum on Rs. 870 from 1st December, 1956 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 13th March, 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 Exhibit B-3 only from the date of deposit by the plaintiffs of the sum of Rs. 880 till the plaintiffs are given possession of the properties, Subject to this modification of the decree against the first defendant the second appeal is dismissed. The parties will bear their respective costs in this Court. No leave.