CHIDAMBARA PILLAI Vs. RANGASAMI NAICKER

JUDGEMENT

(1.) I have had the advantage of perusing the judgment which my learned brother, Seshagiri Aiyar, J., is about to pronounce; and I agree in the conclusion arrived at by him. It is impossible to contend that the power of appointing a testamentary guardian is supported by anything in the ancient texts; and the attractive doctrine that anything which is not expressly forbidden should be held lawful, if expedient, seems to me one which has its dangers and requires careful consideration before application. In the present case, the power claimed seems to run counter to the conception of a Hindu joint family in which every member obtains an interest at birth. I can only agree with Sadasiva Aiyar, J. s remark in Chidambaram Pillai v. Veerappa Ohettiar 43 Ind. Cas. 865 : 6 L.W. 640 : (1917) M.W. 744 : 22 M.L.T. 380 in which that learned Judga says, On principle I find it difficult to hold that a man who cannot deal with a particular species of property he Will can make arrangement for the management of that property by Will after his death or can appoint guardians to manage that property for minor owners who obtain it by survivorship after his death.

(2.) This seems to me to sum up the whole matter.

(3.) I am not even clear that considerations of general expediency support respondents contention. The reference covers the case, not only of the adult co-parcener s own minor sons, but of his minor nephews, and even minor brother regarding whom the natural right of a father discussed by Kumaraswami Sastri, J., in his order of reference can have no application. Even as regards sons, I think the interests of the minors are sufficiently protected by the power of the Court to appoint a guardian; and while the expressed wishes of the father are sure to receive attention at the Court s hands, nothing further is required.