RAMASAMI PILLAI Vs. KASINATH IYER

JUDGEMENT

(1.) Appeal No. 213 arises out of a suit filed by the plaintiffs, who are brothers and SONS of one Arunachala Pillai, to set aside the sales and mortgages referred to in the plaint effected by one N. S. Ramasami Pillai, now deceased, who, it is alleged, purportad to act as their guardian though he had no right to do so and made the alienations complained of. The defendants in that suit were the alienees. Appeal No. 214 arises out of a suit filed by a mortgagee from the aforesaid guardian who seeks to enforce his mortgage on the ground, that the mortgage is binding on the plaintiffs. The title of the plaintiffs father to the properties alienated by the guardian is not disputed. Though the suits were not between the same parties, the evidence recorded in one suit was by consent of parties treated as evidence in the other and one judgment was delivered in both the suits. The Subordinate Judge held that the mortgage was for necessary purposes and binding and as regards the sales he held that the sales of the properties in schedules E, F and G were not binding on the plaintiffs, but that the other allegations were binding. The defendants concerned in the properties decreed to plaintiffs have filed no appeal and we need not consider them further. He held that three of the sales were goods they were for purposes binding on the plaintiffs, and against this decree, the plaintiffs in O. S. No. 48 of 1919, who are defendants in O. S. No. 19 of 1919 appeal.

(2.) The properties in dispute in O. S. No. 48 Appeal No. 213 are the properties comprised in schedules A, B and C, which were purchased by the 1 defendant, the property comprised in schedule D, in which the 9 defendant is now interested, and the property comprised in schedule H, in which defendants Nos. 19 and 20 are interested. The plaintiffs alleged that Ramasami Pillai purported to act as their guardian under a Will alleged to have been executed by their father, that the Will is not genuine and that, even if genuine, it would not affect the properties concerned as the properties were joint ancestral properties. The father of the plaintiffs in O. S. No. 48 died on the 30 January, 1906. The Will which is alleged to have been executed and which the defendants set up as genuine, is dated the 29 of January, 1906, the day before the testator died. The second wife of the deceased, who is the step- mother of the 1 plaintiff and the mother of the 2nd plaintiff, presented the Will for registration and it was registered by the Sub-Registrar. The Will after referring to the illness of the testator Arunachalam Pillai and to the fact that he has a minor son Ramasami Pillai and a daughter Meenakshi, and that the second wife was in the family way proceeds as follows:--"I have nominated Ramasami Pillai, Avergal, son of Swaminatha Pillai of Nagampadi, Mayavaram Taluk, as guardian to protect my family until the said minor Ramasami Pillai attains his age of majority. He himself should have entire management of the immoveable and moveable properties belonging to me, recover the debts due to the family, discharge the debts due by me by selling away the lands, if necessary, and carry out whatever is required to be done in the family. For performing the marriages of my minor sons and daughter he should spend only as much as is consistent with the means and circumstances of the family and have the marriages performed." It then proceeds to provide for his second wife and his mother and states that if his Junior wife begets a son all the immoveable and moveable properties of the family should be divided equally. The 2nd plaintiff is the posthumous son of the testator. The Subordinate Judge found the Will to be genuine and so far as the genuineness of the Will is concerned I see no reason to differ from the Subordinate Judge. It is unnecessary to pursue this matter in detail as it was conceded both in the lower Court and before us that as the properties are admittedly ancestral properties, the decision of the Full Bench of this Court in Chidambara Piliai V/s. Rangasami Naicker 45 Ind. Cas. 905; 41 M. 561; 34 M. L. J. 381; 23 M. L. T. 266; (1918) M. W. N. 265; 7 L. W. 454 would render the Will invalid and inoperative. It was held in that case by the Full Bench, differing from the view taken by the Bombay High Court in Mahableshwar Krishnapa V/s. Ramchandra Mangesh Kulkarni 21 Ind. Cas. 350; 38 B. 94; 15 Bom. L. R. 882 that the only adult coparcener of a Mitakshara family consisting of himself and his minor coparceners is not competent to appoint a testamentary guardian to the coparcener properties of the minor coparceners.

(3.) The case was argued on both sides on the footing that Ramasami Pillai, purported to act as such. He was not the guardian, he had no legal authority to act as such. He was not the guardian under Hindu Law and his position at best would only be that of a de facto guardian.