MUTHALU AMMAL Vs. A.V. AMUDHAM ALIAS PICHAMANI

JUDGEMENT

(1.) THE defendant is the appellant. The plaintiff claimed the suit property as belonging to him by virtue of a purchase under a document dated 9th May, 1952 executed by one Muruga Padayachi for a sum of Rs. 500. The plaintiff was a minor at the time when this property was sold to the defendant for a sum of Rs. 1,000 on 14th July, 1956 by his mother. The father of the plaintiff was then alive and he died only in September, 1965. According to the plaintiff, his father was the natural guardian and during his father's lifetime his mother could not have assumed guardianship and further there was no justification or legal necessity for the sale. He sued for declaration of his title and possession. The suit itself was filed on 12th July, 1968 within 12 years of the alienation by the mother.

(2.) THE defendant resisted the suit and contended that the plaintiff's mother was acting as his guardian even when the property was purchased and that the father, though he was alive, had relinquished his right of guardianship in favour of the mother. According to the defendant, the father was heavily indebted and he therefore left the property and the minor to the guardianship of the mother. The family was said to be in dire need and straightened circumstances at the time of the sale in favour of the defendant. It was claimed by the defendant that the suit was barred by limitation as it was not filed within three years of the plaintiff attaining majority. The plaintiff had claimed mesne profits for three years preceding the suit and the defendant contested this claim also. The learned District Munsif rejected all the objections of the defendant and decreed the suit. He found that the alienation was not for necessity and was therefore not valid and binding on the plaintiff. He found also that the suit was not barred by limitation. On appeal the learned Subordinate Judge of Cuddalore accepted the finding of the learned District Munsif that there was no legal necessity for the sale. He was also of the view that the suit was not barred by limitation. The defendant is now on appeal before me contesting the conclusion of the Courts below.

(3.) ON the question as to whether the mother could act as the lawful guardian during the lifetime of the father, it is well -settled that the father is the natural guardian of the person and the separate property of the minor children, and that guardianship is in the nature of a sacred trust which cannot be transferred. It is only in his absence that the mother could have acted as the natural guardian. The learned Counsel for the appellant relied on the decision in Palani Gounder v. Sellappan, I.L.R. (1964) Mad. 748, in support of the proposition that the mother could act as the de facto guardian even during the lifetime of the father. That was a case where the whereabouts of the father were not known and it was in those circumstances that the mother acted as the guardian. The principles laid down in that case have to be understood in the context of the fact that the father's whereabouts were not known. I do not consider the said decision as an authority for the proposition that even during the lifetime of the father, the mother could have acted as the guardian. In the present case, there is no dispute that the father was alive at the time when the alienation was made as he had attested the sale -deed, and therefore the alienation was made by only a de facto guardian and not by a natural guardian.