Vithu v. Devidas

1. The plaintiff sues for possession of fields sold in 1907 during his minority by his stepmother Mt. Rukhma for Rs. 2,000. It has been found that there was no legal necessity for the sale except to the extent of Rupees. 237-9-0. The lower appellate Court has held that the suit was instituted more than three years after the plaintiff attained majority. The suit has been dismissed as barred by Article 44, Lim, Act. The view taken by the lower appellate Court is that Mt. Rukhma was the de facto guardian and manager of the plaintiff's estate, though there were separated kinsmen in the male line. It has followed an unreported ruling of this Court in Somwarpuri Guru Chandanpuri v. Gopalsingh(1), in which my learned predecessor, Sir Henry Stanyon, dissented from, Husen v. Rajaram(2). In the reported ruling the step-mother conveyed the property when the minor's mother was alive, but no such distinction was made in the judgment. It was laid down that.

“An alienation of the property of a minor by a person who is that minor's guardian de facto is not merely voidable but absolutely void, and the minor need not sue to have it set aside before he can obtain possession of the property.”

2. The decision was based upon the following dictum of their Lordships of the Privy Council in Mata Din v. Ahmad Ali(3):

“It is difficult to see how the situation of an unauthorized guardian is bettered by describing him as a de facto guardian.

3. He may by his de facto guardianship assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it.”

4. The case before the Privy Council, as pointed out by Sir Henry Stanyon, A.J.C, was one governed by the Mahomedan law of guardianship. Stanyon, A.J.C, also says

“that strictly speaking there is no such thing as a de jure guardian under the Hindu law. By custom the father and mother are recognized as guardians.”

5. The learned Judge then points out that an alienation by a de facto guardian, if for legal necessity or for the benefit of the minor would be binding. I admit there is considerable force in the argument set forth in the unreported ruling, but I find that the High Courts have even in cases of Hindu law followed the dictum of Lord Robson in Mata Din v. Ahmad Ali. These cases appeared after the decision of Somwarpuri Guru Chandanpuri v. Gopalsingh. The question which I have now to consider is the position of a stepmother in relation to her minor stepson. According to Mayne, the father and next to him the mother is the natural guardian of a Hindu minor: in default of parents his nearest male kin should be appointed. In Thayammal v. Kuppanna Koundan(4), Sadasiva Aiyar, J., says:

“I hold that under Hindu law, 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 guardian of a minor's person and properties. Recourse must be had to the Court (representing the rights of the King which are paramount to even the rights of the parents) where there is no natural guardian alive.”

6. The case before him was however not that of a stepmother. In Rambaee v. Umurchand Deochund(5) a stepmother was held to be the natural guardian on the authority of the following verse from Manu:

“If among all the wives of the same husband, one bring forth a male child, Manu has declared them all, by means of that son, to be mothers of male issue.”

7. This view, though in accordance with the opinion of the Shastri, is dissented from in Maharanee Ram Bunsee Koonwaree v. Maharanee Soobh Koonwaree(6), so far as regards the interpretation of the text of Manu, Loch and Macphersen, JJ., point out that the step-mother does not stand as a mother for all purposes. Although the argument that under no circumstances can she inherit from a stepson is inapplicable to Bombay and Berar, the observation of the learned Judges that the test of Manu does not make the stepmother a mother so that she may inherit as mother is true also of Bombay and Berar. She inherits as wife and widow of the father from the stepson that is as a gotraja sapinda, and she comes in Bombay after the paternal grandmother (Mayne's Hindu Law, Edn. 8, para, 566). Reliance is placed on behalf of the respondents on Jago v. Oodal(7). That case is no authority for holding that the stepmother is a natural guardian. It merely lays down that an alienation by her may bind the stepson's estate, if it is justified by necessity, or is for his benefit. In Kristo Kissor Neoghy v. Kadermoye Dossee(8) it was laid down that the claims of relatives to the guardianship of a minor stand upon a different footing from those of parents, and it is pointed out that all relatives mentioned in Macnaghten's Principles and Precedents of Hindu Law, Ch. 7, have not an absolute right to take upon themselves the guardianship of a minor without any permission or authority from the ruling power.

8. Upon a consideration of the authorities I have come to the conclusion that the stepmother is not a natural guardian under the Hindu law. The alienation by a stepmother therefore stands on the same footing as that of any other de facto guardian. She is an “unauthorized guardian,” to quote the words of their Lordships of the Privy Council, and not a guardian within the meaning of Article 44, and to an alienation by such a guardian the Article does not apply: Thayammal v. Kuppanna Koundan. I may point out that Article 44 of the present Limitation Act applies not merely to sales but to all transfers of property, and, the restricted construction placed on the meaning of the word “guardian” by the Madras High Court appears to me to be sound. For the appellant the case of Balappa Dundappa Todkal v. Chanbesappa Shivalingappa(9) is relied upon. This case fully supports the appellant's contention but goes further than it is necessary for me to hold, for, according to the Bombay view, even an alienation by a mother would not be governed by Article 44 or Article 91, Lim. Act. The attention of the learned Judges was however not drawn to certain observations made by the Privy Council in the case of Gnanasambanda Pandara Sanadhi v. Velu Pandaram(10). At p. 279 Sir Richard Couch says in respect of an alienation made by the mother of a minor:

“Chockalinga attained majority in (1880) and had by Article 44 of the Act three years for suing to set aside the sale by his guardian. He did not do so and by Section 28 of the Lim. Act his right became extinguished.”

9. Sham Chandra v. Godadhar Mandal(11) cited for the respondents was decided before the Privy Council case of Mata Din v. Ahmad Ali. The actual decision in the case however supports the view taken by me though there are dicta in favour of the respondents. As regards the application of Article 91 there has not been much argument before me. Ordinarily it applies to an instrument executed by a party or his predecessor-in interest. Hence it has been held by this Court in Asaram v. Ratan Singh(12) that a minor member of a joint Hindu family is not bound to set aside a sale effected by the managing member and Article 91 does not apply to a suit for recovery of possession of his share by the minor on attaining majority. Such a sale may in certain case be binding on him just as a sale by a de facto guardian But in neither case is the minor bound to sue to set aside such a sale. There was no necessity for the sale. Out of the total consideration of Rs. 2,000 only Rs. 237-9-0 was found to have been required for necessary purposes. The suit is governed by Article 144 and is within time. The decrees of the Courts below are set aside and in lieu thereof it is decreed that the defendants do put the plaintiff in possession of the property mentioned in the plaint upon the plaintiff paying Rs. 237-9-0 to the defendants. The plaintiff will get his costs in all the three Courts.

P.N/R.K

10. Decrees set aside.