IN RE: M.S. DAKSHINAMURTHI MUDALIAR Vs. STATE

JUDGEMENT

(1.) THIS is a petition under Sections 7 to 10 and 29 of the Guardians and Wards Act read with clause 17 of the Letters Patent, for appointing the petitioner herein as the guardian of his minor son and enabling the petitioner to mortgage a particular item of property belonging to the minor, for fixing the maintenance of the minor and also the remuneration of the petitioner. It is stated that the properties which belong to the minor have been settled on the minor by his paternal grandfather under deeds of settlement, dated 19th July, 1955 and 7th March, 1962.

(2.) THE first question for consideration is whether this petition for appointment of the petitioner as the guardian of his minor son is maintainable at all. There are two decisions of this Court, both of them by Benches, holding that under the Hindu Law, a father is the guardian of his minor son and he does not require any order from any Court appointing him or declaring him as the guardian of his minor son and consequently an application for such a purpose under the Guardians and Wards Act is not maintainable. The said decisions are Sivasankara Mudaliar v. Radhabai Ammal : (1939)2MLJ515 , and Abubacker v. Mariyamma : AIR1946Mad110 . The learned Counsel for the petitioner contends that these decisions deal with the appointment of the father as the guardian of the person of his minor son. But these decisions do not make any distinction between the appointment of a guardian of the person of the minor or the property of the minor, since under the personal law applicable to the minor, the father is the natural guardian of both the person and the property of the minor. On the other hand, Mr. T.A. Ramaswami Reddy, learned Counsel for the petitioner, brought to my notice a decision of this Court in Thiruvengada Mudaliars In re, (1950) 2 M.L.J. 33. (In the matter of A. T. Vasudevan and Ors., minors). That case was concerned with the appointment of the father as the guardian of his minor sons in respect of the joint family property belonging to the father as well as the minor sons. In my opinion, the guardianship with reference to the undivided interest of a minor in a joint family property stands on a different footing from the guardianship in respect of the property belonging to the minor exclusively and that distinction has been given statutory recognition in Section 6 of the Hindu Minority and. Guardianship Act, 1956 itself. That section provides that the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are in the case of a boy or an unmarried girl - -the father, and after him, the mother. Therefore, even before the enactment of the Hindu Minority and Guardianship Act, the Courts have recognised the distinction between the appointment of the father as the guardian of his minor son in respect of the minor's property and the appointment of the father as the guardian of his minor son in respect of his undivided interest in the joint family property. Hence the decision in Thiruvengada Mudaliar, (1948) 3 M.L.J. 47, which only dealt with the appointment of the father as a guardian in respect of the undivided interest which the minors had in the joint family property cannot be of any assistance to support the case of the petitioner in this case. Then Mr. T.A. Ramaswami Reddy relied on the decision in Seem Reddi v. Chenna Reddi. In that case an application under Section 10 of the Guardians and Wards Act was made by a father for declaring him as the guardian of his minor son and that application was dismissed by the learned District Judge. But on appeal a Bench of this Court reversed that conclusion. It may be of interest to note that the judgment itself points out the two grounds on which the learned District Judge dismissed the application. The first reason was that since the death of the minor's mother immediately after the birth of the minor, the father had married a second wife and was at the relevant time living in the house of the second wife's father and the second reason which impelled the learned District Judge to reject the application was that the petition to the lower Court was made 19 months after and therefore there was undue delay in the making of it. The learned Judges of this Court did not agree with these two reasonings of the learned District Judge and allowed the appeal. It was not argued before the learned Judges and the learned Judges did not have occasion to consider the question whether the father, being the natural guardian under the personal law, could have been appointed or declared as the guardian of his minor son under the provisions of the Guardians and Wards Act. Therefore, in my view, this decision also does not support the case of the petitioner. The learned Counsel for the petitioner also relied on the decision in Sakthi V. Kuppathammal : AIR1960Mad394 , That case dealt with an application made under Sections 29 end 31 of the Guardians and Wards Act by a guardian appointed under the provisions of that Act before the enactment of the Hindu Minority and Guardianship Act, 1956. Basing himself on this decision, Mr. Ramaswami Reddy argued that even after the enactment of the Hindu Minority and Guardianship Act, an order has been passed under the previsions of Sections 29 and 31 of the Guardians and Wards Act. But Mr. Ramaswami Reddi has overlooked one crucial and significant fact, namely, in that decision, in O.P. No. 67 of 1953, that is, in a petition filed under the provisions of the Guardians and Wards Act, 1890. Before the enactment of the Hindu Minority and Guardianship -Act, 1956, the guardian was appointed and that guardian applied for direction or permission tinder Sections 29 and 31 of the Guardians and Wards Act, 1890. Further there is nothing in that decision to show that in the original petition itself, it was the father of the minor, who was the natural guardian under the personal law applicable to the minor, was appointed as the guardian of the property of the minor under the provisions of the Guardians and Wards Act. Therefore, that decision also does not advance the case of the petitioner any further with regard to his present petition for appointment as the guardian under the Guardians and Wards Act, 1890.

(3.) MR . Ramaswami Reddy argued that for certain other basic reasons, it must be held that such a petition is maintainable. The reasons, advanced by the learned Counsel is that the natural guardian may not be in a position to deal with the property of the minor even for the benefit of the minor, and therefore he must be armed with a declaration or order of appointment by the Court to enable him to deal with the property of the minor with the permission of the Court. Whether any justification or plausibility could have been claimed in support of such an argument before the enactment of the Hindu Minority and Guardianship Act, 1956 or not, at any rate, after the enactment of that statute, no significance whatever can be attached to such an argument. Sub -section (1) of Section 8 of that Act provides that the natural guardian of a Hindu minor has power, subject to the provisions of that section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. Sub -section (2) provides that the natural guardian shall not, without the previous permission of the Court (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the. minor, or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority; and these provisions correspond to Sections 27 and 29 of the Guardians and Wards Act. Sub -sections (3) and (4) of Section 8 of the Hindu Minority and Guardianship Act, 1956 correspond to Sections 30 and 31 of the Guardians and Wards Act, 1890. Thus there are sufficient and adequate statutory provisions in the Hindu Minority and Guardianship Act enabling a natural guardian to approach the Court for necessary permission or direction, corresponding to the provisions contained in the Guardians and Wards Act, 1890, which a guardian appointed or declared under that Act, can have resourse to. Therefore, simply on this ground it cannot be contended that the natural guardian must be held entitled to apply for his appointment as the guardian under the provisions of the Guardians and Wards Act, 1890.