T V DURAISWAMY NAICKER Vs. E BALASUBRAMANIAN

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are the appellants. the suit was filed by the first respondent for a declaration of title of the plaintiff and the 6th defendant to the suit properties and for setting aside the sale deeds dated 7-8-1957 and 15-31961, executed in favour of defendants 1 to 3 by their guardian. The suit properties originally belonged to one Mangalammal, whose son and daughter are the plaintiff and the 6th defendant. She died on 26-1-1956 leaving behind her husband and two minor children, who are the plaintiff and the 6th defendant. She died on 26-1-1956 leaving behind her husband and two minor children, who are the plaintiff and the 6th defendant. She bequeathed the suit properties under a registered Will dated 5-11-1955 in equal moieties in favour of her tow children, the plaintiff and the 6th defendant, and under the same will, she also appointed her brother one Kalyanarama Iyer as guardian for the minor children and the properties with a direction to be in management of the suit properties, educate the children, get them married and divide whatever properties that remained at the time when the minor children became majors and put them in possession of the same. While the said Kalyanarama Iyer was in such management as guardian of the minors, he sold the properties to the appellants herein under two sale deeds dated 7-8-1957 and 15-3-1961. The plaintiff, after he attained the age of majority, has filed the suit as already stated for a declaration of his title and for setting aside these two sale deeds. It was contended by him that the sale was not supported by any necessity, nor was it beneficial to the minors. It was further contended that the Will itself did not authorise the guardian to sell the property, and that in any case, as a testamentary guardian he had no power of alienation without the prior sanction from a competent court. At the time of the argument it was also contended on behalf of the plaintiff that a Hindu mother had no right to appoint a guardian by Will, especially when the father of the minor children who is the natural guardian was alive. It may be mentioned that Ekambaram Iyer, the father of minor plaintiff and the husband of Mangalammal was alive both at the time when the Will was executed and also at the time when the will was executed and also at the time when Mangalammal died on 26-1-1956. Both the Courts below concurrently held that the sale was not for necessity or binding purposes, and that it was also not for the benefit of the estate of the minors. It was also held that since the natural guardian of the minors was alive, Mangalammal had no authority to appoint a guardian for the minors. On the construction of the will the courts below came to the conclusion that there is no express power of alienation conferred on the guardian, and that since he is a testamentary guardian under S. 9 (5) read with S. 8 of the Hindu Minority and Guardianship act, 1956 he could not sell the property without the prior sanction of a court. In that view, the courts below decreed the suit declaring the title of the plaintiff and the 6th defendant to the suit properties and gave also a decree for possession directing the defendants to deliver possession to the plaintiff. It is against this judgment and decree the defendants 1 to 3 have filed the appeal.

(2.) THE learned counsel for the appellants submitted that there is no prohibition under the Hindu Law against a Hindu woman appointing by Will a guardian for her minor children in respect of the properties bequeathed by her. Per contra, the learned counsel for the respondents contended that a Hindu mother has no power to appoint a guardian by Will whether in respect of the testator's separate property bequeathed under the Will to the minor. In support of this contention the learned counsel for the respondents relied on the following passages in Mulla and Mayne on Hindu Law: mulla, p. 532--"a Hindu father may, by word of mouth or by writing, nominate a guardian for his children, so as to exclude even the mother from the guardianship. The mother, however, has not the power to appoint a guardian by Will but the court may have regard to her wishes, if any, expressed in her will. "

(3.) MAYNE on Hindu Law and Usage at page 287 says--