CHINA ALAGUMPERUMAL KARAYALAR Vs. VINAYAGATHAMMAL

JUDGEMENT

(1.) The suit is for a declaration that the sale of the plaint property to the 1 defendant by the plaintiff's mother during her minority is not binding on her and for its possession. The Subordinate Judge decreed the suit and the 1 defendant has preferred this appeal. The facts are these. One Muthukrishna Karayalar of Padmanabhamangalam village in Srivaikuntam Taluk, Tinnevelly District, died in March, 1915 leaving him surviving the plaintiff, his wife, a minor aged 15 years. On the 2nd June, 1915, the plaintiff's mother as protector and guardian of the plaintiff executed a sale-deed, Ex. XV, in favour of the 1 defendant, the divided step- brother of the plaintiff's husband, conveying all the properties inherited from the husband, except a small portion, for a consideration of Rs. 10,000 to be paid to various creditors including the 1 defendant. On the 15 June, 1915, the 1 defendant executed what is called an indemnity bond, but in reality a security bond, Ex. XXIX, in favour of the plaintiff's guardian, in which he made provision for the maintenance of the plaintiff out of the income of 94 cents of land and undertook to discharge her husband's debts and provided for her enjoying other property belonging to him in case any loss was caused to her by his not discharging the debts. The plaintiff attained majority in 1918 and filed this suit on the 23rd December, 1920 for setting aside the sale as not binding on her and for recovery of possession of the property conveyed under Ex. XV. The 1 defendant pleaded that, as the estate was heavily burdened with debt, it was necessary to sell the property and that he purchased it bona fide for adequate consideration from her guardian, and that the plaintiff, after attaining majority, ratified the sale, and that, in case the sale was set aside, he should be paid at least Rs. 12,000 being the amount that he spent to save the property from creditors and to effect improvements. The Additional Subordinate Judge of Tinnevelly found there was no justifiable necessity to sustain the validity of the sale and decreed the suit. He also found that the plaintiff did not ratify the sale and appellant's vakil did not argue the point.

(2.) The main question in this appeal is, is the sale evidenced by Ex. XV binding on the plaintiff? In order to answer this question satisfactorily two points have to be considered : (1) had the plaintiff's mother authority to bind the plaintiff by her acts in her capacity as guardian, and (2) if the first question is answered in the affirmative, was the sale for purposes which would bind the plaintiff? The plaintiff was a minor aged 15 years at the time of her husband's death in March, 1915. The mother did not become the legal guardian after the death of the plaintiff's husband. According to Hindu Law, the 1 defendant, who is the elder step-brother of the plaintiff's husband, became her guardian on her husband's death. Trevelyan in his "Law relating to Minors" at page 53 says: After the husband's death, the guardianship of his minor widow, and the management of her property, devolve upon the husband's heirs, that is, upon those who arc entitled to inherit his estate after her death in preference even to her own father and he relied upon a number of authorities for his statement. Mayne in paragraph 211 (page 277) of the 8 edition says: The husband's relations, if any exist within the degree of a sapinda, are the guardians of a minor widow in preference to her father and his relations.

(3.) In Khudiram Mukherjee V/s. Bonwari Lal Roy (1889) I.L.R. 16 C. 584 Banerjee, J., observes: Now under the Hindu Law we think that the relations of her deceased husband are entitled to be the guardians of a Hindu widow in preference to her paternal relations. This is clear from the text of Narada, Chapter XIII, verses 28 and 29, cited in the Dayabhaga, Chapter XI, Section 1, para. 64.