Konthalathammal vs Thangaswami Pillai and Others

Oldfield, J.—The first and important of the two orders before us was passed by the District Judge of South Arcot on a petition for the

removal of 1st respondent from her position as testamentary guardian of the person and property of a minor Thirugnanavalli Ammal, for the

appointment of the petitioner, or any other fit person in her stead and for connected reliefs. Against that order there is an appeal by the petitioner

and also a revision petition. I deal first with the respondent''s preliminary objection to the appeal, that this order, consisting in a refusal to remove a

guardian is not appealable u/s 47, Guardians and Wards Act (VIII of 1890), and is final u/s 48. The order, as it stands, is certainly of that

character, its conclusion being that the Court is not prepared to remove the guardian on any of the grounds stated in the petition and that the

petition is dismissed; and the objection is supported by authority which I am prepared to follow, Mohima Chunder Biswas v. Tarini Sunker Ghose

(1892) 19 Cal. 487, Pakhwanti Devi v. Indra Narain Singh (1895) 23 Cal. 201, In re Harkha (1895) 20 Bom. 667 and Imtiaz-un-nissa v.

Anwarullah (1898) 20 All. 433. But the objection has been met by the arguments, (1) that the order is really one declaring a testamentary guardian

u/s 7(1)(b) and, as such, appealable u/s 47(a); and (2) that as the right of a Hindu to appoint a testamentary guardian is not recognised by the law

and 1st respondent''s appointment was a nullity, there was no neoessity for the Court to remove, or to refuse to remove her and its order must be

regarded simply as one refusing to appoint petitioner, which is appealable u/s 47(a).

The first of these arguments can be dealt with shortly. It rests solely on the fact that the lower Court in its order has referred to 1st respondent as

the testamentary guardian, has affirmed her fitness for the appointment and found against the conduct alleged, as disqualifying her for it. But all that

was relevant to the prayer for her removal and did not amount to the making of a declaration, which was not made in terms, which neither party

had asked for, which the lower Court was not conscious that it was considering, and in order to which the procedure enjoined in Civil Rules of

Practice, Chapter XI, was not employed.

The second argument calls for fuller discussion notwithstanding that, as I shall bold, there is ground, in any event, for interference with the order

before us in revision, because a conclusion against the legality of 1st respondent''s appointment as guardian will be relevant, not only to the question

whether that order is appealable, bat also to the merits in the further enquiry to be held, since, if she has not been legally appointed, the question

will not be of her right to retain the appointment, but only of her eligibility for it in competition with the petitioner or any other candidates. It is not

disputed that by a will, dated 6-7-15 the father of the minor left her his separate property, worth (it is said) several lakhs of rupees, and purported

to appoint 1st respondent guardian of her person and property. But it is argued that the terms of a decision of a Full Bench of this Court; in

Chidambaram Pillai v. Rangaswami Naicker (1918) 41 Mad. 561 require us to hold generally against the right of a Hindu to appoint a guardian of

a person or property of his child by will, not only when the property is, as it was in that case, ancestral, but also when it is, as in this case, separate.

It is not disputed that this is the only authority, by which the argument can be supported, and we must therefore scrutinize its terms to see whether

they entail the acceptance of any principle applicable to the present case. Such scrutiny is the more clearly required, when, as appears from the

fuller report of the arguments in the Madras Law Journal 34 M.L.J. 381 the experienced vakil for petitioner, who attacked the appointment,

conceded that it would have been valid, if the property in question had been separate. It is further to be observed that the decision does not deal

with guardianship of the person, except in the statement of Coutts-Trotter, J., that the appointment of such a guardian may be a natural right vested

in the father.

What is urged, however, is that each of the judgments refers generally to the absence of any recognition in Hindu Law of the father''s right to

appoint a posthumous guardian for his children and that Section 6 of the Guardians and Wards Act authorises only such appointments as are valid

by law to which the minor is subject. If that were indeed the effect of the judgments, the argument under consideration would no doubt be

established. But, to take them in order, that of Ayling, J., refers to the necessity for careful consideration, if the existence of such a power is to be

recognized on the sole grounds that its exercise is not forbidden and it is expedient, and then decides against its existence on the ground, irrelevant

in the case before us, that it would run counter to the conception of a Hindu joint family. Seshagiri Aiyar, J., no doubt refers first to the absence of

any foundation for the existence of the power in Hindu Law or as a common law right recognized by other systems of jurisprudence. But he then

enters on a survey of the case law, to which I return, observing for the present only that many of the authorities cited dealt with the joint family

property, with which he was directly concerned, that he distinguished one case on the ground that the property in question was self-acquired and

that he explained the recognition of a testamentary power of appointment in certain statutes on the ground that they ""referred to cases, in which

such power is permissible under the law, for example, cases of self-acquired property in Madras."" It may in the circumstances be doubted whether

these learned Judges intended to negative the existence of a testamentary power generally or otherwise than in connection with joint family

property. Coutts-Trotter, J., alone, if I understand him correctly, adhered to the argument that absence of a statutory basis for the power or of any

basis for it, except natural right, was conclusive against its existence generally and in connection with separate as well as family property. We are

not, in my opinion, debarred by Chidambara Pillai v. Rangasawmi Naicker (1918) 41 Mad. 561 from scrutinizing petitioner''s argument on its

merits.

In doing so I make no attempt to follow the demonstration that testamentary guardianship in other systems of law has had no origin

independently of statute. That demonstration before the Full Bench did not, it may be observed, include any referrence to the mention of

testamentary guardianship in the twelve tables (Mackledly''s Roman Law ad Dropsie, Section 621 note) or to the former practice of the

Ecclesiastical Courts in England in respect of personal property (vide Simpson on Infants, 3rd Ed., page 203) and the complication of the matter in

respect of real property to the existence of feudal rights which II Carl. c. 24 was passed to determine; and it is therefore doubtful whether the

argument, so far as the Roman and English systems were concerned, was exhaustive. We are however on firmer ground in confining attention to

India. It may be said at once that it is useless to look for this or any other testamentary power in Hindu texts, which recognise no power to make a

will or execute an instrument to take effect after executor''s death at all. It may in fact be suggested that the powers to appoint a testamentary

guardian and to make a will were as regards any demonstrable or legitimate origin and until the Hindu Wills Act in 1870 on the same footing. The

real justification for the one, as for the other, is that it has been exercised from the earliest times after the reception of English Law without

objection and with the countenance of the legislature and the Courts. It is argued that this is inconclusive, when the will-making power can be

explained in terms of legal conceptions always current in India, whilst the appointment by will of a guardian cannot; and we have been referred to

the suggestion in Jotendro Mohan Tagore v. Ganendro Mohan Tagore (1872) I.A. Supp. 47 of a connection between wills and gifts inter vivos.

But this suggestion, like others considered by Mr. Mayne at page 366, Hindu Law, 9th Ed., is at best conjectural; and, if conjecture as to the

origin of the power in dispute is necessary, when the argument in its favour is based primarily on its exercise and recognition, it is easy in a country

where the distinction between legal and beneficial ownership has always been neglected, to explain the testamentary appointment of a guardian of

property in terms of the execution of a trust, the similar appointment of a guardian of the person following by mistaken analogy or on the ground of

mere convenience.

The reply to the contention that such appointments have been continuously recognised by the legislature has been that such recognition is always

subject, as it is under Act VIII of 1890, to their validity under the personal law of those concerned. But it is difficult to suppose that any such

reservation was contemplated in sections 18 and 19, Madras Regulation V of 1804 in connection with permanently settled estates, the owners of

which have in almost all instances been Hindus: and none is conceivable in connection with Section 3, Hindu Widows Remarriage Act (XV of

1856). It is true that the Hindu Wills Act (XXI of 1870) did not apply Section 47, Indian Succession Act (XV of 1865) to Hindu wills; but that

section, evidently based on the Statute of Charles II, was framed with reference to the wills, which the Succession Act controlled; and the result of

the failure to apply it to Hindu wills was only to limit the privilege of testamentary appointments to adult testators and the authority of the

commentators follows the evident intention of the legislature. In a case of 1807 referred to in Strange''s Hindu Law, Vol. II, page 72, the Pandit

recognised apparently as a matter of course, that the father''s testamentary nomination of his brother as guardian, should prevail against the claim of

the natural guardian, the widow; and, if the Court''s compliance with this view was, as Mr. Colebrook suggests, in the exercise of his discretion,

that was natural where the testamentary power itself was still in controversy. Later on Trevelyan on Minors, 3rd Ed., page 62, and, the successive

editions of Mayne''s Hindu Law and Usage are clear. Chidambaram Pillai v. Rengaswami Naicker (1918) 41 Mad. 561 being referred to in the

last edition of the latter as relating only to guardianship of family property.

The conclusion in favour of the right of testamentary appointment is supported indirectly by the fact that except in Budhilal v. Morarji (1917) 31

Bom. 413, where the point was taken but not decided, we have not been shown that unless perhaps in two cases any general objection to such an

appointment was even suggested before the decision of the Madras Full Bench although in several cases, for instance, Venkayya v.

Venkatanarasimhalu (1897) 21 Mad. 401, Sami Row v. Elianatha Rao (1905) 16 M.L.J. 357 and In the matter of Srishchander Singh (1893) 21

Cal. 206, such an objection, if sustainable would have been conclusive. Of those two cases Alagappa Aiyangar v. Mangathayi Ammangar (1916)

40 Mad. 672 related to guardianship of the person and that of Soobah Durga Lal Jha v. Rajah Neelanand Singh (1867) 7 W.R. 74 to

guardianship of the property. There seems to be no reason in view of the considerations already referred to why the former decision should not be

followed, although it appears to have been based entirely on Dr. Albrech v. Bathee Jellamma (1911) 22 M.L.J. 247, in which to validity of the

appointment was, so far as appears, not disputed. The second authority calls for closer consideration, because Sadasiva Aiyar, J., in Alagappa

Aiyangar v. Mangathayi Ammangar (1916) 40 Mad. 672 understood it apparently as contemplating an appointment in respect of family property,

whilst Coutts-Trotter, J., in Chidambaram Pillai v. Rangaswami Naicker (1918) 41 Mad. 561 thought that it referred only to a possibility and

contains no definite decision. The answer to Sadasiva Aiyar, J., is however given in the judgment of Seshagiri Aiyar, J., in the ease last mentioned,

that self-acquired as well as family property was in question; and his further comment is significant. ""In respect to such property which can hardly

be disputed it is open to the testator to appoint a guardian to manage it."" The recognition of that right in Subbah Durga Lal Jha v. Rajah Neelanand

Singh (1867) 7 W.R. 74 seems to me, with ail respect for Coutts-Trotter, J., clear. No doubt the learned Judges there, as they avoided finding on

the genuineness of the will relied on, were compelled to adjudicate, so far as the family property is concerned, with reference to representation

and, so far as the separate property was concerned with reference to estoppel; and they conceded that the Will in respect of the family property

was in any event inoperative. But their treatment of both pleas depended on their conclusion that if the will was genuine, it conferred a definite legal

character and that the Courts dealing with the earlier litigations and the then respondent in connection with foreclosure were justified in assuming

that it did so. No doubt the learned Judges in referring to the will as operative as regards the guardianship, said that it was not so as regards the

family property. But it should be remembered that in the previous litigation relating to that property, the suit of 27-7-1848, the guardianship was in

dispute only between the alleged testamentary and the natural guardian, for both of whom the separate character of the property was common

ground. This decision given in 1867 has not, so far as is shown, been subjected to adverse comment until now and it in my opinion corroborates

strongly the inference based on the materials already considered. I hold that a Hindu can appoint a guardian of the person and property of his child

by will, that the appointment of 1st respondent is not a nullity and that therefore the present appeal does not lie and must be dismissed. No order is

made as to costs.

We are however asked by a separate petition to interfere with the lower Court''s order in revision on the ground that it has failed to exercise its

jurisdiction in respect of its omission first to consider certain allegations that 1st respondent has alienated the minor''s estate without jurisdiction.

The facts are that, in paragraph 17(a), (b), (c) and (e) there are allegations of misappropriation by 1st respondent for the benefit of or at the

instance of 2nd respondent, who under the will is associated with her in the management of the minor''s property, and that the lower Court

dismissed them on the sole ground that under the will 1st respondent is not to be required to account in respect of her management. Whether

evidence to prove these allegations was offered is not clear, but it would have been useless to offer any, when a different ground of decision had

commended itself. It is not, however, possible for us to accept that ground. For, apart from the question whether the intention of the testator was

that gross negligence or dishonesty by 1st respondent should be condoned, the allegations in para. 17(e) and (f) are not, as they are stated, matters

of account; the contention that those in para. 17(a) and (b) are so, because they relate to the disposal of the collections of the estate, cannot be

accepted, when the suggestion is that the investment of those collections as corpus has been made with the object of benefiting 2nd respondent, In

this respect the lower Court failed to exercise its jurisdiction. We must, therefore, set aside its order and remand the petition for further enquiry. As

the effect of charges, such as those in question, must be cumulative, all the allegations in the petition will be open to further consideration, before

orders are passed. Costs of the Civil Revision Petition in this Court will be costs in the cause and be provided for in the lower Court''s order.

This result reached, it is unnecessary for us to consider the other failure to exercise the jurisdiction relied on in the Civil Revision Petition, the

lower Court''s omission to ascertain from the minor in person her wishes as to her guardianship and the proposal for her marriage, on account of

which the removal of 1st respondent was principally asked for. It is sufficient that neither the Guardians and Wards Act not any authority makes

such ascertainment obligatory and that the lower Court may very well have refrained from seeing and questioning the minor in the exercise of its

discretion, and which in view of her tender age was very likely sound and with which therefore we cannot interfere. In this connection however, we

think it advisable to direct the attention of the lower Court to certain allegations as to the efforts by the both sides to interfere with the custody of

the minor''s person and to prevent her from coming from Chidambaram to appear at the hearing. Some of these allegations were made in this

Court by affidavit in connection with an application for temporary injunction and it is not disputed that some of them were also made orally on the

last day of the hearing in the lower Court. It will be for the lower Court to consider after obtaining any definite statement which either party -may

wish to make regarding the facts whether anything has been done which would constitute a disqualification for the custody and guardianship of the

minor and whether the appointment of an impartial third person as guardian of either the person or the property is not advisable.

In this connection reference must be made to C.R.P. No. 289 in which we are asked to revise an order by the lower Court granting an

injunction restraining four persons specified, here petitioners from taking steps towards the minor''s marriage against the 1st respondent''s wishes.

This order was passed on the day on which the guardianship petition was dismissed on the oral application of first respondent''s counsel. Whether

such an oral application should have been listened to it is unnecessary to decide but it may be observed that no special reason appears for the

deviation from ordinary practice involved. There are however other fundamental objections to what was done, for there was no proceeding before

the Court initiated by the 1st respondent, in which even an interim injunction could have been granted, much less a permanent one, such as that

before us. No notice was given to the persons, against whom the order was made; and they are not alleged to have been in fact present.

There was no evidence by affidavit or otherwise adduced for the Court to act on and the statement in the order that the facts were not

disputed is futile, when the persons concerned to dispute them, those against whom the order was asked for never had an opportunity to do so. It

is difficult to understand how any one concerned can have thought that a permanent injunction granted in such a way could be legal. The Civil

Revision Petition must be allowed with costs against 1st respondent, the injunction being dissolved.

Devadoss, J.

I entirely agree with the order passed by my learned brother and the reasons therefore, and I wish to add a few words of my own on the

question of a Hindu father''s right to appoint a guardian by will for his minor children as it is a question the decision of which, one way or other, will

affect millions of His Majesty''s subjects in this Presidency.

Mr. Krishnaswami Aiyar who appears for the appellant contends ""that under the Hindu Law a father has no right to appoint a guardian by will

for his minor son, and relies for his contention on the Full Bench ruling in Chidambara Pillai v. Rangaswami Nayaker (1918) 41 Mad. 561. His

argument is that it is settled law that a father cannot also appoint a guardian for his minor son by will when there is a joint family property, and that

he cannot appoint a guardian for him if he bequeaths to him his separate or self-acquired property, for that would mean the existence of two

guardians, one in respect of joint family property and one in respect of his separate property. Even if the Hindu father is the sole surviving member

of a joint family he cannot appoint a testamentary guardian for his son who by birth acquires an equal right with the father in ancestral property. The

right to appoint a guardian does not go with the right to make bequests. For a testator cannot appoint by his will a guardian to a minor legatee, who

is not his child, and a Hindu who is not empowered by Hindu Law to appoint a guardian for his son cannot claim the right by virtue of his being

able to leave his son some of his own property, and it is illogical to say that he can appoint a guardian in respect of his separate property when he

cannot do so in respect of joint family property. Wills and testaments were unknown to Hindu Law and therefore a Hindu father has not, by his

personal law, a right to appoint a testamentary guardian for his minor children. The right to appoint a guardian by will or testament is a creation of

statutes in England, and there is no statute law in India empowering a Hindu father to appoint a guardian by will.

The real question for consideration is: Has a Hindu father the right to appoint by will a guardian for his minor son? It is considered as settled

law that he cannot appoint a guardian to manage the joint family property as the manager of the family is the guardian of all minor members. The

last surviving member of joint family cannot appoint by will a guardian for his son to manage the family property as it is said to be inconsistent with

theory of survivorship. If the father has not the right to appoint a guardian by will for his minor son by virtue of his being the father, he cannot

acquire the right 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

than in the power to bequeath the property to him. A father as well as a mother have obligations as well as rights in respect of their children during

minority. The penal law prescribes a penalty for abandoning a child and punishes any one who kidnaps a child under a certain age from the rightful

guardianship. The father has the right to the custody of the children against all the world till a court of law sees fit to take away the guardianship

from him. Under the Hindu Law a father can give away a boy in adoption. The mother can give a boy in adoption only with the express permission

of the father. Even where a father is a junior member of a joint Hindu family he alone has the right to give the boy in adoption. The managing

member of a joint family has not the right to give in adoption any junior member who is not his own son. The Hindu law recognises the right of the

father as paramount in (sic) respect to that of the managing (sic) of the family. The Hindu Law (sic) the father to sell his son. If (sic) is the right of

the father why could he not appoint by will some one to look after the minor son during his minority? The answer is that the Hindu Law does not

permit it. On a close examination, it will be found that it does not prohibit or discountenance such an appointment. Wills being unknown to Hindu

Law no provision is found in the authorities as to the power of a father to appoint a testamentary guardian for his minor son. The teat on which

reliance is placed is No. 27, in Chapter 8 of Manu. ""The property of a student and of an infant, whether by descent or otherwise, let the King hold

in his custody, until the owner shall have ended his studentship, or until his infancy shall have ceased in his sixteenth year,"" The chapter is headed

on judicature; and on Jaw, private and criminal."" From the said heading, the text appears to be a direction to the King''s Judges to do what is

proper in the case of an infant, when his property has to be protected. There is nothing to show that in the case of infants the father could not

exercise his right of guardianship. No doubt the King''s power was paramount. But that is no ground for Saying that the father did not exercise or

could not exercise his right as guardian of his own minor son; for if he had no power over his son how did it allow a father to give away his son in

adoption, thereby cutting off the son from all the benefits that would accrue to him in his natural family. Nor does the text in any way infringe or

take away the right of the manager of a joint family to have the guardianship of the minor members. I take it, though not without some hesitation,

that the direction is only to the Judges to decide causes that might come up before them. Whatever may be the meaning of the text, I think there is

nothing in the Hindu Law to prevent a Hindu father appointing a guardian for the person of his minor son.

The argument urged against this view is that there can only be one guardian for a minor and that there cannot be one guardian for the person

and another for the property. No doubt there cannot be two guardians for one and the same property of a minor. But there is nothing in law or

reason or equity to prevent there being two guardians, one for the person and one for the property. The Guardians and Wards Act expressly

permits the appointment of more guardians than one--vide Section 15, Clauses (4) and (5). Where it is not permissible to appoint a guardian for

the property of a minor, a guardian for the person alone can be appointed by testament. The case in Virupakshappa v. Nilgangava (1894) 19

Bom. 309, decided by a Full Bench of the Bombay High Court is sufficient authority for this position. It is sheer pedantry to seek for texts or

authority in ancient law books for giving relief suitable to the conditions now prevailing. The Code of Manu was intended for the primitive society

which has long since ceased to exist. How would it be possible to enforce the law contained for instance in the following texts.

A once born man, who insults the twice born with gross invectives, ought to have his tongue slit; for he sprang from the lowest part of

Brahma.

If he mention their names and classes with contumely, as if he say ""Oh Devadatta, thou refuse of Brahmans,"" an iron style, ten fingures long,

shall be thrust red hot into his mouth.

Never shall the King slay a Brahman, though convicted of all possible crimes: let him banish the offender from his realm, but with all his

property secure, and his body unhurt.

Should a wife, proud of her family and the great qualities of her kinsmen, actually violate the duty which she owes to her lord, let the King

condemn her to be devoured by dogs in a place much frequented.

In Chapter 9: A barren wife may be superseded by another in the eighth year. She, whose children are all dead, in the tenth; she who brings

forth only daughters in the eleventh; she who speaks, unkindly, without delay.

It is unnecessary to quote further examples from Manu to show the utter unsuitability of applying wholesale the directions or laws contained

therein to the present society. It would be as absurd to apply the Code of Manu in its entirety to the present society as to apply the Lavitical law to

modern Europe. When the family or clan lived in a small village it was deemed prudent to live jointly, to have one manager and to prevent

alienation. But to day a member of a joint family may live in England or America while the other members live in this presidency. If it is said that a

father cannot appoint by will a guardian for his minor son because there is some joint family property, what is to happen to a minor whose father

dies in California or South Africa? If the boy happens to be a minor at the date of his death no one can take charge of him or look after the

property till an undivided cousin or a distant relative in India takes steps to protect him. If a successful member of the bar or a member of the

Viceroy''s Council who is a Hindu sends his son for education to Eton or Harrow and dies before his son attains age, should the boy be left to the

tender mercies of an ignorant co-parcener by reason of the misfortune that the family owned an ancestral hut in a small village in the presidency?

The Court has to take into account the modern conditions in giving effect to ancient texts or law that was considered valid and binding once but

which has been departed from generations ago. The Hindu Law, as now obtains has departed in many vital respects from the law that was codified

if such an expression could be used with regard to the Code of Manu perhaps 2,000 years ago.

The law of wills has grown up quite within recent times and judicial decisions have recognised the validity of Hindu wills and Hindu Wills Act

has put the matter on a satisfactory basis, The following passage from West and Buhler, page 657, illustrates the opposition to the recognition of

wills by Codes. ""Mr. Ellis thought that a Hindu could not make a will at all."" Strange''s Hindu Law, 419: ""It is obviously, opposed to the

Brahmanical family system and to the interest of the ancestral manes in the estate out of which sacrifices to them are to be provided. A general

opinion unfavourable to the testamentary power was expressed by native judicial officers consulted in Bombay in 1864. But the principle obtained

early recognition, though but a qualified one, that what could be given away during life could be bequeathed by will."" Whether the law of wills has

grown out of the powers to make gifts inter vivos or not it is unnecessary to enquire. It is sufficient fo1 the present purpose to say that the will had

coma to be recognised as valid by long course, of decisions, before the (sic) Wills Act was passed. The power father to appoint a guardian for his

min son by will was recognised in a case reported in Soobah Doorgah Lal Jha v. Rajah Neelanand Singh (1867) 7 W.R. 74. All writers on Hindu

Law without exception have recognised the right. Writers like Mayne, Trevelyaa and Gour have accepted the father''s right to appoint a

testamentary guardian as unchallenged. It was the consciousness of the people in this presidency that a father could appoint a testamentary

guardian for his son till the decision in Chidambaram Pillai v. Rengaswami Nayaker (1918) 41 Mad. 561 was given. No one seriously disputed the

right of the father to appoint a guardian for his minor son. With due respect I must observe that the decision in Chidambaram Pillai v. Rengaswami

Nayaker (1918) 41 Mad. 561 is not only against the consciousness of the people but is opposed to their notion of the law on the subject. The

point that was referred to the Pull Bench in Chidambaram Pillai v. Rengaswami Nayaker (1918) 41 Mad. 561 was ""whether it is competent to the

only adult co-parcener of a Mitakshara family consisting of himself and his minor co-parceners to appoint a testamentary guardian to the co-

parcenery properties of the minor co-parcener?"" and the answer given was in the negative. Seshagiri Aiyar, J., tries to explain Soobah Doorgah

Lal Jha v. Raja Neelanand Singh (1867) 7 W.R. 74 on the ground that the property dealt with was the self-acquired property of the testator. If the

father had no power to appoint a testamentary guardian he could not acquire the right merely because he had self-acquired property. There are

remarks in the judgment to the effect that there is nothing in Roman Law or English Common Law which empowers a father to appoint a guardian

for his minor children. Mr. Moyle in his book on Roman Law at page 13 with regard to the Twelve Tables makes this observation. ""Nor did they

include the leges regaiae, law and religion having now been differentiated. Much again relating to the effects of legal acts and dispositions which

was the matter of common knowledge and formed no subject of dispute remained, as we might say, Common Law"" the familiar possession of (sic)

citizen."" Liege in his book on Roman (sic) describes the various kinds of tutela. (sic) testimentaria was appointed by will. (sic) duties of tutela are

set out at page (sic) of his book. Pollock and Matiland in (sic) history of the English Law at page (sic) trace the origin of wills to very early (sic).

We may believe that even in the first days of Christianity the Church was teaching that the dying man was in duty bound to make such atonement

as possible for the wrongs that he had done and to devote to the relief of the poor and other pious works a portion of the wealth that he was

leaving behind him * * * * * From the middle of the 9th century, we begin to get documents which are spoken of as the Anglo-Saxon wills and

testaments."" Vol. II, page. 312

With regard to guardianship the learned authors make this observation at page 445 of the same volume: ""This part of our law will seem strange

to those who know anything of its next of kin. Here in England old family arrangements have been shattered by seignorical claims, and the King''s

Court has felt itself so strong that it has had no need to reconstruct a comprehensive law of wardship. That the King should protect, all who have

no other protector, that he is the guardian above all guardians is an idea which has become exceptionally prominent in this much governed country.

The King''s Justices see no great reason why every infant should have a permanent guardian because they believe they can do full justice to

infants."" The testamentary power was hotly opposed by the King and his officers while it was sedulously supported by the Church and its

dignitaries. Finally the Church triumphed. Until recently the Ecclesiastical Courts dealt with all testamentary matters and granted probate. So it was

necessary in the time of Charles II to have a statute empowering a father to appoint a testamentary guardian. This does not mean that under the

Common Law the father had not the right of guardianship but under the peculiar tenures obtaining in England and the law of primogeniture the

power of the father to appoint a guardian for his heir was resisted till the legislature had to intervene. There is nothing in the law of tenures in this

country to militate against the right to guardianship of a father, and therefore it cannot be contended that that right was denied in ancient times. The

decision in Chidambaram Pillai v. Rengaswami Nayaker (1918) 41 Mad. 561 can only govern cases where a testamentary guardian is sought to

be imposed upon the co-parceners of a joint Hindu family. It cannot be extended so as to take away the right of a father to appoint a guardian for

the person of his minor son.

The source of law is custom, judicial decisions and statutes. The custom as now prevalent recognises the father''s right as shown by the

numerous wills in which a guardian is appointed for the minor children by fathers; and the judicial decisions have recognised the right at least from

the time of Soobah Doorga Lal Jha v. Rajah Neelanand Singh (1867) 7 W.R. 74: and the fact that the correctness of that decision has not been

questioned for a long number of years can only be attributed to the consciousness of the people that it was in accordance with the custom

prevailing among the people. I am led to make these observations in the hope that the decision in Chidambaram Pillai v. Rangaswami Nayaker

(1918) 41 Mad. 561 will come up for re-consideration before long.

In the present case the minor is girl. She can have no community of interest in property with her father. The question of joint family status

cannot come in. I hold that it is the inherent right of a father to have the custody of his minor children and that right is transmissible by will or

testament, and there is nothing in the Hindu Law to prevent such transmission.

There is a further argument which I need only mention, for it has not been pressed before us, that is, the applicability of the Code of Manu to

the Dravidians of this presidency. The English Judges who administered justice in the days of the East India Company took their law from the

Pandits who always looked up the ancient texts for guidance. The more ancient the text the greater was its sanctity and ergo its binding character.

This view was sedulously propagated by the Pandits, and the Judges who were ignorant of the customs of the people, naturally adopted the view

of the Pandits. This question need not be pursued further. But it should be remembered when it is sought to apply wholesale what is foreign to the

Dravidians to the conditions now prevailing. The Courts in India are enjoined to decide cases according to justice, equity and good conscience

where no specific rule exists. There being no specific rule against the appointment of a testamentary guardian by a father for his minor children

either in Hindu Law or in any valid custom, I hold that a father has power to appoint by will a guardian for the person of his minor children whether

there be joint family property or not; and that right does not depend upon the father being able to devise by will any property to his children for

whom he appoints a guardian.