MUKKAMALA HANUMAYAMMA Vs. KASINENI LAKSHMIDEVAMMA

JUDGEMENT

(1.) This appeal raises an interesting question regarding the position of a person who starts to intermeddle with the estate of a minor and involves a decision as to what it is that first gives to that person the status of a de facta guardian. The appellant is the plaintiff who sued to recover a legacy of Rs. 1,700 due to her under the will of her deceased husband. The first defendant is the sister of the deceased husband and executrix of his will. The second defendant is the mother of the plaintiff and the alleged de facto guardian. The third defendant is the brother of the deceased husband. The facts as found by the lower Courts are as follows: The plaintiff was 15 years old when her husband died on or about 10 of February, 1918. At that time she had been living with her husband for about a year. Shortly after the death of her husband, her mother, the second defendant who does not contest the suit and has not given evidence, demanded on behalf of her daughter, the plaintiff, the money and lands due to the plaintiff under the will of the husband and at the same time threatened that, if payment was not made at once, the plaintiff would not be allowed to take part in the funeral ceremonies the importance of which was recognised by all parties. Under this pressure an arrangement was made whereby on the22nd of February, 1918, that is, approximately 12 days after the death of the husband, the first defendant's husband executed a promissory note, Ex. I, for not only the legacy of Rs. 1,700 but also for an amount of Rs. 408 which is described as interest on this legacy, apparently based on the identification of this legacy, with the katnam present to the deceased husband paid by the plaintiff's parents at the time of the marriage, interest being calculated from the date of the giving of the present. The promissory note also covered an amount due to the minor for paddy and the promisor undertook to pay interest at 12 per cent. This was on the 22nd of February. At the same time the plaintiff's mother received the lands bequeathed to the plaintiff and gave a receipt in token of the discharge of the legacy in Ex. II. Thereupon the ceremonies went on and the plaintiff stayed in her mother-in-law's house for three months, a period which is more or less obligatory by the custom of the community. Just at the end of this period, two payments were made under Ex. I whereby the debt incurred by the first defendant's husband in discharge of the legacy to plaintiff was wiped off by payment to the plaintiff's mother. It must be observed that the actual discharge of the legacy was not by these cash payments but by the receipt dated 22nd February, 1918, Ex. II. Admittedly after the cash payments had been made, the plaintiff left the house of her mother-in-law and went to live under the protection of her mother, the second defendant, and there she stayed for the rest of her minority. Although the plaintiff is not now living with her mother, it is found by the lower Courts that she only left her mother's house mainly for the purpose of the present case and that there is no real conflict between the two. It is also found as a matter of fact that ever since the plaintiff left the house of her mother-in-law, her affairs have been managed by her own mother, the second defendant.

(2.) The question is whether, on these facts, the first defendant, having arranged for the discharge of the legacy by delivery of the lands to the plaintiff's mother and by execution of the promissory note in her favour which promissory note was shortly afterwards discharged by the first defendant's husband, can be made to pay the legacy once more to the plaintiff herself. There is no finding of fact that the money paid to the plaintiff's mother has in actual truth been received by the plaintiff herself. Both the learned Judges of the Courts below apppear to have conjectured that this may be so. They however base their decisions on the position that the second defendant was the de facto guardian who could give a good discharge to the first defendant and they have given a decree to the plaintiff against her mother only on the footing that the money is or should be with the mother and can be claimed only from her. I have therefore to decide whether the second defendant was on the date when she gave the receipt, Ex. II, that is to say, on 22nd February, 1918, the de facto guardian and whether she could give a valid dischage to the executrix in respect of the legacy to the plaintiff.

(3.) My attention has been drawn to one case in which a learned Judge of this Court has expressed a doubt as to the capacity of a de facto guardian to give a valid discharge on behalf of the minor Rajaram V/s. Kothandapani A.I.R. Mad. 280. With the greatest respect to the learned Judge who made the observation referred to, it seems to me essential to hold that a de facto guardian who is validly in charge of the minor's affairs may for the benefit of that minor give a good discharge in respect of a debt due to the minor. There is a long line of authority beginning from Hunoomanpersaud's case (1856) 6 M.I.A. 393 for the view that a de facto guardian of a Hindu minor can do those acts in the interests of the minor which can be done by a de jure guardian of that minor; and I am not aware of any infirmity of the position of the de facto guardian of the minor - once it has been established that he is the rightful guardian though not appointed by any process of law - disentitling him to do those acts which a de jure guardian can validly do. The difficulty in the present case however is that it raises the question of the first point of time at which the mother can be said to have begun to be the de facto guardian. The phrase "de facto guardian", necessarily connotes a guardian who is such a guardian as a result of something which has happened previously. De facto literally means from that which has been done and this basic conception of past acts resulting in a present status has led to at least two decisions in which it has been laid down that a person becomes a de facto guardian as a result of a course of conduct. Each of these cases arose out of an isolated act of alienation of the minor's property purporting to have been done by a person treated as a de facto guardian in that particular transaction only. The first case is that of Harilal Ranchhod V/s. Gordhan Keshav (1927) I.L.R. 51 Bom. 1040, wherein Crump, J., defines a de facto guardian as a person: Who, being neither a legal guardian nor a guardian appointed by Court takes it upon himself to assume the management of the property of the minor as though he were a guardian.