MAYILSWAMI CHETTIAR Vs. KALIAMMAL AND ORS

JUDGEMENT

(1.) 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.

(2.) 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 MadLJ 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 Narayanan Nambudri v. Ravunni Nair, 1924 47 MadLJ 686 , 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,1936 50 MadLJ 689. Referring to the decision in Nambudri's case, 1924 47 MadLJ 686 , it was said as follows:

(3.) In that judgment the decision in Ganjayya v. Ramaswami, 1913 24 MadLJ 428 , 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 Ganjayya v. Ramaswami, 1913 24 MadLJ 428 , may well be compared with the decision already referred to and reported in Arunachala Reddi v. Chidambara Reddi,1902 13 MadLJ 223. It has been finally held that Seetharamamma's case (1925) 50 MadLJ 689 : I.L.R. 1925 Mad. 768.