KOLA SURAYYA Vs. KOLA SUBBAMMA

JUDGEMENT

(1.) THE first point urged in the Second Appeal is that the suit is not barred by limitation so far as the plaintiffs are concerned, even though it might be barred so far as the 1 defendant is concerned. THE eldest brother who had attained majority did not sue in time to set aside the sale made by the second defendant, the paternal grandmother and guardian of the plaintiffs and the 1 defendant during their minority. THE point is clearly covered by the decision in Doraisami V/s. Nondisami (1912) ILR 38 M 118 : 25 MLJ 405 (FB), wherein it was held that if the eldest brother, who is naturally the managing member of the family, does not bring a suit within the time to set aside an alienation, any suit by an younger brother would be barred inasmuch as the suit is barred against the elder brother. Mr. Raghava Rao, who appears for the appellants, contends that the authority of Doraisami V/s. Nondisami (1912) ILR 38 M 118 : 25 MLJ 405 (FB) is considerably shaken by the decision of the Privy Council in Jawahir Singh v. Udai Parkash (1925) ILR 48 A 152 : 50 MLJ 344 (PC) . In that case, their Lordships did not deal specifically with the case in Doraisami V/s. Nondisami (1912) ILR 38 M 118 : 25 MLJ 405 (FB). THEy simply say that they agree with the High Court of Allahabad as regards the question of limitation, but unfortunately the judgment of the Allahabad High Court is not before us and we do not know on what grounds the learned Judges who decided that case distinguished that case from the case in Doraisami V/s. Nondisami (1912) ILR 38 M 118 : 25 MLJ 405 (FB) . THE authority of Doraisami V/s. Nondisami (1912) ILR 38 M 118 : 25 MLJ 405 (FB) has not been challenged so far as it has been brought to our notice by any decision of this Court. We are therefore bound to accept the authority of Doraisami V/s. Nondisami (1912) ILR 38 M 118 : 25 MLJ 405 (FB) as binding upon us. THE point urged by the appellants cannot therefore be sustained in view of the decision in Doraisami V/s. Nondisami (1912) ILR 38 M 118 : 25 MLJ 405 (FB).

(2.) THE next point urged is that the paternal grandmother is not the natural guardian of the plaintiffs and therefore the shorter period of limitation is not applicable to the case. THEre is an observation of Sadasiva Aiyar, J., in Thayammal V/s. Kuppanna Goundan (1914) ILR 38 M 1125 at 1126 : 27 MLJ 285 " that nobody else than the father and mother of a minor (with probable exceptions in favour of the elder brother and the direct male and female ancestors of the minor) is entitled as a matter of natural right to be and to act as the guardian of the minor's person and properties." This observation of the learned Judge is relied upon by Mr. Trevelyan in his well-known book on "Minors". THEre is also an observation of Mr. Justice Banerjee in Mohanund Mondul V/s. Nafur Mondul (1899) ILR 26 C 820 at 825 that "it is not questioned and cannot be very well questioned that the de facto manager answers to the description of the natural guardian in this case." In that case, the paternal grandmother acted as the guardian of the person and property of the minor. THEre is no direct authority for the contention that the paternal grandmother is not the natural guardian of her grand-children in the absence of their father and mother. Considering the habits and customs of the people of this part of the country, there is no reason why the paternal grandmother should not be considered as the natural guardian of her grand-children in the absence of their father and their mother. We think that, in the absence of the father and the mother, the paternal grandmother is the natural guardian of her grand-children. We find this point against the appellants and, in the result, the Second Appeal fails and is dismissed with costs.