BRIJBHUKANDAS DAMODARDAS Vs. GHASHIRAM MULCHAND

JUDGEMENT

(1.) The question referred to a full bench is, "whether it is competent to an adult coparcener of a Hindu Mitakshara family to appoint by will or otherwise a trustee, guardian or manager of the coparcenary property of a minor coparcener during his minority ?" The facts, which gave rise to the reference are that there was an adult member of a joint family, his coparcenary being a minor son and a minor nephew, and the question is whether on the death of the adult he. can appoint a guardian or manager of the coparcenary property. The question should, I think, be confined to the case of an only adult coparcener, because there could be no suggestion but that, if there were surviving adult coparceners, the deceased coparcener could not appoint a guardian of the joint property. The question has been referred to a full bench, because of a difference of opinion in this Court between the decision in Harilal Bapuji V/s. Bai Mani (1905) I.L.R. 29 Bom. 351 and Mahabkshvar Krishnappa V/s. Ramchandra Mangesh (1913) I.L.R. 38 Bom. 94 On principle the question would seem to admit of no doubt. It is of the essence of Hindu law in cases governed by the Mitakshara school, that on the death of one coparcener the joint property vests in the surviving coparceners, and the deceased coparcener has no interest in the property, and no power of disposition over it. If that is so, it is difficult to see on what principle he is to be at liberty to appoint somebody to manage the joint property. That was really the basis of the decision of this Court in Harilal Bapuji v. Bai Mani, where it was held that the adult member of a Mitakshara family could not appoint a guardian of the joint property on his death. It was also the basis of the decision of a full bench of the Madras High Court in Chidambara Pillai v. Rangasami Naicker (1918) I.L.R. 41 Mad. 561. The latter case is really on all fours with the present case, because there the surviving members of the joint family were minor sons and nephews of the deceased coparcener. The view to the contrary, which prevailed in this Court in Mahableshvar Krishnappa V/s. Ramchandra Mangesh, was frankly based on convenience. The Court expressed the view that it was very convenient that on the death of a father leaving only minor members of the joint family of which he was a member, he should have a power to say who was to manage it during the minority ; and to meet this convenience the Court held that the father had the power. No doubt there is some force in the view that it would be a convenient power for the father to possess, but if the law is to be altered in order to meet the convenience of the public or any section of it, it is for the Legislature to make the alteration. The argument as to convenience, and the answer to it, were expressed very pithily by Mr. Justice Courts Trotter in Chidambara Pillai V/s. Rangasami Naicker, in language which I cannot hope to improve upon. What he says is (p. 572) :- ...his argument seemed to me to come merely to this. The thing is convenient, it is consonant with all right notions of what a father ought to be able to do for his children ; it is nowhere expressly prohibited; therefore it can be done. To me on the contrary it seems that to put a person in a definite legal relation to property of which he is not the owner is a step which cannot be taken unless there is legal authority for taking it. Its convenience and justice may be admirable reasons for the legislature to take action. They cannot in my opinion suffice to set in motion a court of law.

(2.) That seems to me to dispose of the case of Mahableshvar Krishnappa v. Ramchandra Mangesh, and apart from that case, there is really no authority in support of the contention that this power exists. Certainly there are some cases which deal with the right of a Hindu father to appoint a guardian of the person and property of his son, but we are not dealing here with a case of that nature. In my opinion, therefore, the question should be answered in the negative. We amend the question by substituting "the only adult coparcener" for "an adult coparcener." Rangnekar, J.

(3.) The question raised-and which we have slightly amended-is referred to this bench as there is some conflict of judicial opinion on it, not only in this Court but in the other High Courts. So far as our Court is concerned, two different views are expressed in Harilal Bapuji V/s. Bai Mani (1905) I.L.R. 29 Bom. 351 : s.c. 7 Bom. L.R. 255 and Mahableshvar Krishnappa V/s. Ramachandra (1913) I.L.R. 38 Bom. 94 : s.c. 15 Bom. L.R. 882. In Harilal Bapuji V/s. Bai Mani it was held that a Hindu father who had a son living with him is not competent to appoint trustees to administer ancestral properties until the son should reach the age of twenty-one years, on the ground that at the moment of the testator's death the whole of the property was and became the property of the son by right of survivorship. In Mahableshvar V/s. Ramchandra it was held that a dying adult Hindu might appoint a manager and trustee for the minor members of the family without interfering with the succession to the family. In this case Sir Basil Scott C. J. went upon, firstly, the decision of the Privy Council in Raj Lukhee Dabea V/s. Gokool Chunder Chowdhury (1869) 13 M.I.A. 209, and, secondly, upon the ground of practical convenience. As regards the first point, it may be pointed out that the case of Raj Lukhee Dabea V/s. Gokool Chunder Chowdhury was under the Dayabhaga under which it is competent to a Hindu to dispose of the property even if he has a son. The law in this respect under the Mitakshara is different. As to the ground of practical convenience, all I need say is that it might well be left to the Legislature to-deal with. The only question before us is to see if there is any principle of Hindu law which would justify us in answering the question referred in the affirmative.