Mayilswami Chettiar vs Kaliammal and Others

A. Alagiriswami, J.—The first defendant is the appellant. The defendants'' mother executed a mortgage on the foot of which the suit out of

which this second appeal arises was filed. The mortgage was for Rs. 1,500 and the lower appellate Court has now found that the mortgage is

supported by necessity only to the extent of Rs. 900. The recital in the mortgage is that it was borrowed for family expenses. P.W. I gave evidence

that they made enquiries about the debt and necessity of the minors and that only after satisfying themselves they lent the money. P.W. 2 gave

evidence that the money was spent for maintenance and education of the defendants and also for carrying out repairs to the well. There is,

therefore, no question that, as found by the Courts below, the mortgage is supported by necessity and is binding on the defendants.

The only other question that arises is whether the mortgage executed by the mother as the de facto guardian of the minors, while the father is

alive, is valid or not. The position of the de facto guardian under Hindu law is indeed so well established that there is no need to cite any authority

for the proposition that an alienation by a de facto guardian, if for necessity, is binding on the minors. The only question that arises therefore, in this

case is whether where there is a legal guardian, an alienation by a de facto guardian will be valid. Both the father and the mother are natural

guardians of their minor children. There is no doubt that if a contest arose as between the lather and the mother as to who should be the guardian

of the minors, then it would be the father who would be the guardian. Therefore the question is whether even where there is a father for the minors

alive, the mother can acting as de facto guardian of the minors, alienate their property for necessity. Authorities seem to favour the view that she

can. The earliest case is the one reported in Arunachalt Reddi v. Chidambara Reddi (1902) 13 M.L.J. 223. In that case there was a testamentary

guardian appointed for the minor. But the minor''s mother alienated the minor''s property. It was held that the alienation of minor''s estate made by

the natural and de facto guardian will be valid if for necessity, notwithstanding that there was a testamentary guardian in existence (especially where

such testamentary guardian had acquiesced in the alienation). In this case also the father has attested the mortgage deed and the management of the

property having all along been with the mother, the father should also be deemed to have acquiesced in the mortgage. In Kundan Lal v. Beni

Prasad 137 Ind.Cas. 115, the mother of the minors was alive. But for some reason or other she did not function as a guardian and their estate was

managed by their uncle. An alienation made by him was held valid. Reliance was placed, on behalf of the appellant, on the decision reported in

Nalannad alias Palliprom alias Thattukkasseri Manakkal Narayanan Nambudri and Another Vs. Kanhirampare Ravunni Nair and Another, , In

that case it was held that a step-mother who was managing the household and looking after the minors had no right to mortgage the properties of

the family for family necessity. In fact, at page 689, it is mentioned that it was not contended that the de facto guardianship of the step-mother gave

her any right to mortgage the estate. This decision has been criticised and differed from by a Bench of this Court in the decision reported in

Vamulapalli Seetharamamma v. Maganti Appiah ILR (1936) Mad. 768 : 1936 50. M.L.J. 689. Referring to the decision in Nalannad alias

Palliprom alias Thattukkasseri Manakkal Narayanan Nambudri and Another Vs. Kanhirampare Ravunni Nair and Another, , it was said as

follows:

I would take leave to say that if the parties were governed by the Hindu law, I should have thought it might have been well contended that the

mortgage, if for necessity, could be upheld.

At page 776, it is mentioned that:

Alienations by de facto guardians of Hindu minors have come up very frequently before Courts, and our attention has not been directed to any

decided case in which it has been held that such an alienation was per se void, apart from : any question as to whether it was for legal necessity or

not.

In that judgment the decision in B. Tirapayya Minor by guardian T. Ganjayya Vs. Mallidi Ramaswami, , where it was held that the natural

mother was a "" lawful guardian "" for the purpose of Section 21 of the Limitation Act, even though there was a testamentary guardian named in the

will of the adoptive father who was unwilling to act, was also noticed. This decision in B. Tirapayya Minor by guardian T. Ganjayya Vs. Mallidi

Ramaswami, , may well be compared with the decision already referred to and reported in Arunachala Reddi v. Chidambara Reddi (1902) 13

M.L.J. 223. It has been finally held that Seetharamamma''s case (1925) 50 M.L.J. 689 : ILR 1925 Mad. 768.

... the right of a de facto guardian to deal with the property of a Hindu minor has been recognised by our Courts ever since the decision of the

Privy Conncil in Hanuman Persaud Panday v. Mst. Babooee Munraj Kunweree (1856) 6 M.I.A. 393, provided the alienation was for necessity.

Thus it is amply clear that even when there is a legal guardian in existence, any alienation of minor''s property by a de facto guardian would be

valid if it is for necessity. It follows that the decision of the lower appellate Court upholding the mortgage to the extent of Rs. 900 which it held was

for necessity is valid. This second appeal is therefore dismissed. There will be no order as to costs.