G. Palani Goundar and Another vs Sellappan and Another

Venkatadri, J.—This appeal arises out of an action brought by the Plaintiffs for recovery of possession of the suit property alleging that the

sale deed executed by their mother in favour of their grandmother when their father was alive was not binding and that the Defendants had no

manner of any right, title or interest in the suit property. The facts that are necessary for the disposal of this appeal are the following:

The Plaintiff''s father one Karuppa Gounder got some family properties in the family partition, dated 29th November 1936. He was also allotted

certain debts which he was directed to discharge. The extent of the property allotted to him was about 8 acres 83 cents and the debts amounted to

about rupees two thousands. Soon after the partition he sold Kalingiam lands, for discharging a portion of the family debts. He also executed a

usufruct mortgage exhibit B-3 in the case on 30th July 1939, for a sum of rupees five hundred. Several suits were filed against him in 1939 and

1940 (vide exhibits B-7 to B-9) for recovery of moneys. One Sinnammal filed one of such suits Original Suit No. 462 of 1939, on the file of the

District Munsif''s Court, Gobichettipalayam, for recovery of the mortgage amount against the Plaintiffs'' father and obtained a decree and she was

taking steps to bring his properties for sale. While matters were at that stage the Plaintiffs'' father left the village without giving any information about

where he was going. It may be mentioned that even at the time of the filing of the present suit his where about were not known. The Plaintiffs''

mother in order to save the estate from being proceeded against sold the suit property to her mother for the purpose of discharging the debts. The

sale was on 5th December 1941. Out of the sale price the Plaintiffs'' grandmother discharged the debts of the Plaintiffs'' father. The grandmother

executed a settlement deed the very next day, that is on 6th Decanter 1941, in favour of her grandsons, the Plaintiffs in the suit, giving them a

moiety of the property purchased by her. The other moiety was disposed of by the grandmother to the Defendants in the suit for a sum of rupees

four thousands in the year 1950. The grandmother died in or about 1958. The Plaintiffs have filed the present suit attacking the original sale deed

executed by their mother in favour of their grandmother on the ground that it is not valid and binding on them. There is no controversy in regard to

the debts incurred by the Plaintiffs'' father and also the debts allotted to him at the time of the partition. It is also clear from the evidence on record

that the whereabouts of the Plaintiffs'' father were not known both at the time when the Plaintiffs'' mother executed the sale deed and also at the

time of these proceedings.

The Defendants resisted the suit contending that the sale by the Plaintiffs'' mother was binding on the Plaintiffs.

The learned District Munsif gave a finding that the sale deed is valid and binding on the Plaintiffs and dismissed the suit. But on appeal the

learned Subordinate Judge, on the short ground that the Plaintiffs'' mother cannot act as the Plaintiffs'' guardian (de facto) while their father is alive,

came to the conclusion that the sale deed executed by her is not valid and binding on the Plaintiffs, with the result Re decreed the suit. Now it is

against this judgment and decree that the Defendants have preferred this appeal.

The short point that arises for consideration is whether the Plaintiffs'' mother in the circumstances prevailing at the time of the execution of the

sale deed could act as a de facto guardian and execute a sale deed in favour of the Plaintiffs'' grandmother. In other words, can a mother act as de

facto guardian while her husband is alive, though his whereabouts are not known.

As far as our High Court is concerned, no member of a family other than the father or the mother has been recognized as having the right of

guardianship [vide Chennappa v. Onkarappa ILR (1940) Mad. 358 But the point arises whether the mother can be the guardian during the lifetime

of the father. It is useful to refer to the following passage at page 64 in the Law relating to minors by Ernest John Trevelyan, 1906 edition.

On the death of the father, or in his absence, or in case of his having lost the right of guardianship, and in the absence of a valid appointment by

him, the mother is entitled to the guardianship of her minor children.

The learned author cites a case reported in Modhoosoodun Mookerjee v. Jadub Chunder Banerjee (1865) 3 W.R. 194 In that case the father

filed a suit for a declaration that his daughter''s marriage should be cancelled as it was contracted with an inferior Brahmin without his consent. The

marriage was effected during his absence by his wife. Dealing with the case the Court observed:

The father of the girl is a Koolin, visiting after lengthened absences the mother of his daughter. The mother, in his absence, is her guardian, in

straightened circumstance; and she gave her in marriage to a brahmin of an inferior grade to the Plaintiff for a consideration of 200 rupees and the

ceremonies were all duly performed.

Under these circumstances, we have no doubt that the marriage is indissoluble as laid down in the Vyvasta of the pundit.

In Gunga Pershad v. Phool Singh (1868) 10 S.W.R. 106 a question arose whether a sale deed executed by a brother on behalf of himself and

also as guardian of his minor brothers while their father was alive was binding on his minor brothers. The learned Judges observed:

But supposing that the father was alive at that time, it appears to mp that, if Duryah Lall was de facto acting in the matter as guardian of his

brothers, the Plaintiffs'' title we do not be bad so far as that objection is concerned.

In Kundan Lal v. Beni Pershad (1931) ILR 13 Lah. 399, Tek Chand J., held that a bona fide encumbrance made by a de facto guardian of a

Hindu minor for the benefit of the estate cannot be impeached by the minor on attaining majority on the mere ground that the guardian who

purported to act on his behalf was not a legal guardian under Hindu Law or a guardian appointed under the Guardians and Wards Act, the facts in

that case reveal that the sale deed was executed by the paternal uncle of the minor Plaintiffs while their mother who was their natural guardian was

alive.

Though the case reported in Arunachela Reddi and Another Vs. Chidambara Reddi, may not be a direct case, it may be useful to refer to it for

the proposition that an alienation made by a de facto guardian will be valid if be necessity notwithstanding that there was a testamentary guardian in

existence.

It is, therefore, clear that the mother can act as ae facto guardian during the lifetime of the father. Therefore, the conclusion arrived at by the

Subordinate Judge that the mother cannot act as a. de facto guardian while the father, is alive is not correct. Once it is held that the mother can act

as a de facto guardian she can sell the property for necessity and benefit and certainly the sale deed will be binding on the minor sons. The powers,

of a de facto guardian were elaborately discussed in the classical judgment of Mahajan J., reported in Kondamudi Sri Ramulu v. Myneni

Pundarikakshayya and Tadavarti Bapayya and Ors. v. Myneni Pundarikakshayya (1950) 1 M.L.J. 612 (F.C.). It was held in that case that a de

facto guardian can sell the property in case of necessity and the true test to be applied in deciding a case of alienation is one of necessity and not

one of authority of the person doing the act. It was observed that-

It is the necessity of the loan and the pressure on the estate that are the touchstone cm which its validity and binding character on the minors'' estate

are judged.

It is equally well settled that the powers of alienation of a de facto guardian under the Hindu Law are the same as those of the lawful guardian.

In the instant case both the trial Court and the lower Appellate Court have found that there was necessity for the mother of the Plaintiffs to execute

a sale deed in favour of her mother for the benefit of the Plaintiffs. When once it is found that the mother can act as a de facto guardian and that

there is necessity for the alienation, the Plaintiffs'' suit has to be dismissed.

This appeal is accordingly allowed but in the circumstances without costs. Leave granted.