At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE JAGADISAN
For the Applicants: R. Gopalaswami Iyengar for M.V. Venkatesan, Advocates.
1. This is an application by V. Sampath Lakshmi, the property and personal guardian of her minor children (1) Lalitha Bai, (2) Narayanan, (3) Lakshmanan, (4) Sita Kumari, (5) Gopal, (6) Mirabai, (7) Ramani, and (8) Kasturi, of whom five are her daughters and three are her sons, for sanction of the court to have her minor daughter Lalitha Bai, the first named, married to her brother Satyamurthi, and for payment out of a sum of Rs. 3000 from and out of the estate managed by her towards the marriage expenses of the contemplated marriage.
She was appointed guardian by order of court dated 18-9-1959 in O. P. No. 97 of 1959 on the file of the Original Side of this court. Previously, her husband Venkatesan was appointed guardian of the property and person of some of the minor children in O. P. No. 30 of 1950. The two miner children, Ramani and Kasturi, were born to Venkatesan and Sampath Lakshmi after the order of court in O. P. No. 30 of 1950 appointing Venkatesan as the guardian. Venkatesan died On 29-1-1959 and Sampath Lakshmi was appointed in his place as the property and personal guardian of all the minor children referred to above.
The properties now forming the subject matter of O. P. No. 97 of 1959 and previously forming the subject matter of O. P. No. 30 of 1950 belonged absolutely to Tiruvengadasami Pillai, the father of the deceased Venkatesan who died leaving behind his last will and testament dated 15-1-1936 which was duly probated in O. P. No. 128 of 1937 on the file of this court. The testator Tiruvengadaswami carved out only a life estate in all the properties forming the subject matter of the bequest in favour of his son, Venkatesan, with a vested remainder in favour of the sons of Venkatesan.
It is admitted in paragraph 3 of the petition in O. P. No. 97 of 1959 that the minor sons of Venkatesan and Sampath Lakshmi, viz., Narayanan, Lakshmanan and Gopal are alone absolutely entitled to all the properties comprised in the will of the late Tiruvengadasami Pillai and in the schedule of properties attached to the petition. The daughters of Venkatesan and Sampath Lakshmi have no manner of right or claim in the properties forming the subject matter of the legacy in favour of the minor sons.
It is also plain that the deceased Venkatesan did not make any acquisition of his own and that none of the items of properties forming the subject matter of the guardian petition can be said to belong either to Venkatesan absolutely or to the joint family of Venkatesan and his minor sons. The minor sons of Venkatesan are the absolute legatees of the properties comprised in the guardian petition under the will of their late grandfather, owning the properties as tenants in common, each so
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being entitled to a third share of the properties.The position, therefore, is that Sampath Lakshmi, the applicant herein, is functioning as the property guardian of her three minor sons abovenamed, and as the personal guardian of all her children, male and female. She has been permitted to draw a sum of र100 per month from and out of the estate of the three minor sons for the upkeep, maintenance and education of the minor children.2. The question for consideration is whether it is permissible for the property guardian of the estate of the three minor sons to spend the sum of र3000 or any reasonable amount which the court may sanction from and out of this minors estate for the marriage of the minor girl, Lalitha Bai, the sister of the minor wards. The girl has attained marriageable age and she should be married in a manner befitting the social status and respectability of the family.There is no difficulty in the court approving the choice of the bridegroom especially when the match is approved not merely by the personal guardian of the minor girl, but also by the paternal grandmother of the minor and by the father of the guardian. In view of the supporting affidavits of S. Chandrasekharan and Padmavathi Ammal approving the marital alliance as proposed by the guardian, I accord sanction to the said marriage.3. The payment of the sum of र3000 prayed for by the property guardian can be ordered only if such payment is in accordance with the law governing the management by a court guardian of the estate of the ward. The girl to be married is a sister of the wards whose property is being administered by the court. The purpose of the expenses for which sanction of the court is sought is very laudable and proper. It may be that if the minors themselves had today attained age, they would have been willing to celebrate the marriage of their sister by spending a sum of र3000; which is not an unreasonable or excessive amount having regard to the total value of the estate belonging to the minors.But the court cannot authorise such an expenditure if it is not within the competence of the property guardian to incur such expenses himself. Considerations of justice, equity and good conscience are really out of place in matters of this kind where the powers of the guardian are circumscribed both by statutory provisions and by the personal law governing the parties.4. Sampath Lakshmi, the mother of the minors, is their natural guardian under the Hindu law. She can do all acts which are reasonable and necessary for the protection and preservation of the minors' property and for the necessity and benefit of the minors themselves. The powers of a guardian of property are described thus by Trevelyan in his book "The Law relating to Minors" 5th Edn. page 139 :"Subject to the restrictions on the powers of testamentary guardians and of guardian of property appointed or declared by the court, a guardian of property may do all acts which are reasonable and proper for the realisation, protection and benefit of the property. The powers of a guardian are not co-extensive with those of a full owner. He is a trustee with powers of management occasionally enlarged by necessity. When he has been appointed by the court under Act 8 of 1890 his powers are limited by that Act......All transactions which guardians enter into on behalf of their wards must secure to the latter some demonstrable advantage, or avert some possible mischief in order to obtain recognition from the court. They must show the strictest good faith, and must be based on actual necessity and advantage and not on calculations of possible benefit."The Judicial Committee in a very early decision in Hanooman Pershaud Pandey v. Mt. Babooee Mundraj Koonweree, 6 Moo Ind App 393 (PC) described the position of the manager for an infant heir in a classical passage thus :"The power of the manager for an infant heir to charge an estate not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate........The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded."What is necessity or benefit can never be exhaustively laid down and attempts in that direction by judicial pronouncements can at best be only construed as decisions on the facts and circumstances of each case. The dictum in the Hanooman Persaud's case, 6 Moo Ind App 393 (PC) is the sacred fountain forming the sources of the stream of subsequent case law on the subject. But the decisions present a 'wilderness of single instances' from which it is difficult to extract any principle or rule of law.5. Where a natural guardian is appointed as the certificated guardian under the provisions of the Guardians and Wards Act (Act 8 of 1890), as in the present case, the powers as natural guardian are no longer at large in view of the provisions of the Guardians and Wards Act, which have become operative. Section 7 (2) of the Guardians and Wards Act provides :"An order under the section shall imply the removal of any guardian who had not been appointed by will or other instrument or appointed or declared by the court".In Arumugam Chetti v. Duraisinga Tevar, ILR 37 Mad 38 : A.I.R. 1914 Madras 648 it was held that the appointment of a guardian under the Guardians and Wards Act (Act 7 of 1890) has the effect of extinguishing the rights of the minors 'natural guardian', to deal with the minors' property. At page 42 (of ILR Mad); it is observed,"The position of a mother after the appointment of a guardian by court appears to be no better, even though she may be guardian of the minors' persons, as in this case".The garb of a natural guardian falls off the moment he or she becomes a certificated guardian under the Guardians and Wards Act and it cannot be resumed by the certificated guardian for rehabilitating himself in the manner of exercising his functions and discharging his duties as such certificated guardian. Therefore, in the instant case, we have to look to the provisions of the Guardians and Wards Act to find out whether an application of this kind made by Sampath Lakshmi is sustainable or not.6. The statutory provisions under the Guardians and Wards Act relating to the powers of the guardian of property are found in Sections 27, 28 and 29 of the Act :S. 27 : A guardian of the property of a ward is bound to deal therewith, as carefully as a man of ordinary prudence would deal with it if it were his own and, subject to the provisions of this chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.S. 28 : Where a guardian has been appointed by will or other instrument, his power to mortgage, or charge, or transfer by sale, gift, exchange or otherwise, immoveable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under the Act been declared guardian and the court which made the declaration permits him by an order in writing notwithstanding the restriction, to dispose of any immovesble property specified in the order in a manner permitted by the order.S. 29 : Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the court to be guardian of the property of a ward, he shall not without the previous permission of the court-(a) mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immoveable property of his ward, or(b) lease any part of that property for a term exceeding five years, or for any term extending more than one year beyond the date on which the ward will cease to be a minor.Even with regard to the powers of a natural guardian in a case where the natural guardian is not the certificate guardian and where no certificated guardian at all has been appointed by the court in exercise of the powers under the Guardians and Wards Act, Section 8 of the Hindu Minority and Guardianship Act (Act 32 of 1956) has brought in statutory restrictions.7. It is as follows :Section 8(1) : The natural guardian of a Hindu minor has power, subject to the provisions of this section to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.(2) The natural guardian shall not, without the previous permission of the court-(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part; of the immoveable property of the minor, or(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.(3) Any disposal of immovable property by a natural guardian in contravention of Sub-Section (1) or Sub-Section (2) is voidable at the instance of the minor or any person claiming under him.(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in Sub-Section (2) except in case of necessity or for an evident advantage to the minor.(3) ........ .......(4) ........ .......8. The essence of the guardian's power, whether it be as laid down by the Judicial Committee in Hanooman Persaud's case, 6 Moo Ind App 393 (PC) which has been consistently and uniformly followed throughout by all the High Courts, or it be the provisions of the Guardians and Wards Act, or the provisions of the Hindu Minority and Guardianship Act, is to enable the guardian to act for purposes which are necessary, reasonable and proper for the benefit of the minor or for the purposes of realisation, protection or benefit of the minor's estate. It is obvious that the guardian has no power to do anything to the prejudice of Ms ward. No act of the guardian can bind the ward and no act of the guardian can receive the approval of the court, if it does not result in some advantage to the minor, actual or prospective, but material and real and not sentimental and illusory.9. Mr. R. Gopalaswami Aiyangar, the learned counsel appearing for the applicant, contended that it was permissible for the guardian to incur such expenses from the estate to have the sister of the ward married, as the purpose can be termed to be one of legal necessity. He also contended alternatively that even if the purpose cannot satisfy the requirements of legal necessity, as the term is understood and interpreted by judicial pronouncements, it can yet be justified on the ground of spiritual necessity, as Kanyadana will confer spiritual benefit on the minors.In support of these contentions, he mainly relied upon two decisions, the one reported in Nandan Prasad v. Ajudia Prasad, ILR 32 All 325 (FB) and the other in Krishnamachari v. G.N. Ramabadran, ILR 1952 Mad 318 : A.I.R. 1952 Madras 706. In ILR 32 All 325, there was a joint Hindu family consisting of two brothers and a sister, all of whom were minors. One minor brother borrowed a sum of money from a third party to provide for the marriage expenses of his sister who was 13 years of age. The minor borrower died and the lender sued the surviving brother to recover the sum advanced from the property of the joint family in his hands.The suit was resisted by the non-borrowing surviving brother on the ground that Brij Behari, the borrower was at the date of the loin a minor and that the contract was void. It was found as a fact that the cash advanced by the lender was duly applied for the reasonable and necessary expenses of the sister's marriage. The Allahabad High Court held that the borrowing by the minor bound the family estate and that the surviving brother should be made liable for' the borrowing as he got the property by survivorship. At page 328, Piggott observed as follows :"It may be conceded that by general principles of Hindu law both Brij Behari Lal and the defendant, Ajudhia Prasad, lay under an obligation to provide out of the family property the funds necessary for performing the marriage ceremonies of their sister in a manner suitable to the social position of the family and the pecuniary resources."At page 329 Piggott, J. further observed,"I am satisfied that this argument is adequately met by the rejoinder that the loan was made to Brij Beharilal as manager of the joint family, that it was virtually a loan to the family itself, and that Ajudhia Prasad was as much liable as his elder brother for the provisions of the necessary expenses of the sister's marriage."At page 331, there is this further observation :"On the whole, therefore, I am of opinion,, that, though the present case is one very near the-boundary line, it may fairly be said that the provision of the reasonable expenses for Mussamat Genda Bibi's marriage was, at the time when the loan in question was taken, a matter of necessity for her minor brother."At page 333 Stanley, C.J. observed,"Brij Behari and Ajudhia Prasad were under a legal obligation not merely to maintain their sister, out also to provide for the expenses of her marriage, and being under age were incapable of entering into a contract. It was as much obligatory upon them to provide for the expenses of their sister's marriage as it is obligatory on a lunatic to supply his wife and children with necessaries suitable to their condition in life..... The head of the family is bound to supply maintenance and marriage expenses for the daughters of the family, and money advanced to him for such an object may reasonably, I think, be regarded as money supplied for necessaries within the meaning of Section 68."10. In the Allahabad case the cardinal fact is that the girl was entitled to be married at the expense of the joint family assets under the personal law governing the parties. The only complication besetting the case was the fact that the borrower happened to be in minor at the time when he borrowed. As the obligation that was incurred by him was one fastened upon the estate under the personal law, there was no difficulty in holding the estate liable in the hands of the surviving brother. That case cannot be an authority governing a case where the expense? of the marriage cannot be properly charged on the estate administered by the guardian. Cases of joint family where the unmarried girls have a right in law to saddle the estate with their marriage expenses are clearly distinguishable from the facts of the present case.11. In ILR 1952 Mad 318 : A.I.R. 1952 Madras 706, the question for consideration was whether a Hindu widow, inheriting her husband's estate, or a daughter inheriting her father's estate, can alienate the property for the purpose of incurring the marriage expenses of a daughter or a daughter's daughter of the family. Their Lordships held that Kanyadana is an act of piety calculated to promote spiritual bliss and that a widow who incurred the expenses for the purpose of kanyadana of her daughter's daughter was promoting the spiritual bliss of her deceased husband and that, therefore, she was competent to incur such expenses by alienating a portion of the properties. Satyanarayana Rao, J. observed at page 336 (of ILR Mad) :"In case of marriages of the daughter's daughter or the daughter's grand-daughter, however, the alienations are supported on the ground that the gift of a destitute kanya in marriage is, conducive-to the spiritual welfare and confers spiritual merit on the last male own or as his funds are utilised for the performance of the marriage' It is, however, unnecessary to refer to the observations contained in that judgment in detail as 1 am of opinion, that a widow or other female heir under the Hindu law holding a limited estate occupies a position far different from that of a guardian of court managing an infant's estate.12. A widow or other limited heir is not a tenant for life, or a trustee for the reversioner but is an owner of the property, inherited by her whoso powers of disposal are however restricted. In Janki Ammal v. Narayanaswami, 43 Ind App 207 : A.I.R. 1916 PC 117, the Judicial Committee stated thus :"Her right is of the nature of right to property; her possession is that of owner; her powers in that character are, however, limited: but so long as she is alive, no one has any vested interest in the succession."It is true that a limited heir under the Hindu law (female heir), the manager of a joint Hindu family, the guardian of a Hindu minor, the manager on dharmakartha of an idol in a temple or a shebait as is known in Bengal, have all been assigned by legal tradition the same powers of alienations and disposal over the property forming the subject matter of their care, and that the dictum of the Judicial Committee in Hanooman Pershaud's case, 6 Moo Ind App 393 (PC) is stated to be the measure of their power in this behalf. But so far as the widow's powers of alienation are concerned, the judicial decisions have made it clear that she can also alienate for religious or charitable purposes.These purposes have been divided into two classes, viz, (a) purposes which are compulsory and 'obligatory like the performance of the obsequial ceremonies of the deceased owner, payment of his debts etc., and (b) the performance of religious ceremonies which, though not essential and obligatory, may yet be deemed to be conducive to the spiritual welfare of the deceased owner. The Supreme Court of India in Kamala Devi v. Bachulal Gupta, 1957 SCR 452 : A.I.R. 1957 SC 434, summarised the case law on the subject as follows at page 475 (of SCR) :"On an examination of the decisions referred to above, the following principles clearly emerge : (1) it is the imperative religions duty and a moral obligation of a father, mother or other guardian to give a girl in marriage to a suitable husband; it is a duty which must be fulfilled to prevent degradation, and direct spiritual benefit is conferred upon the father by such a marriage. (2) A Hindu widow in possession of the estate of her deceased husband can make an alienation for religious act which are not essential or obligatory but are still pious observances which conduce to the bliss of the deceased husband's soul. (3) In the case of essential or obligatory acts, if the income of the property or the property itself is not sufficient to cover the expenses, she is entitled to sell the whole of it; but for acts which are pious and which conduce to the bliss of the deceased husband's soul, she can alienate a reasonable portion of the properly, (4) Gifts by a widow of landed property to her daughter or son-in-law on the occasion of "the marriage or any ceremonies connected with the marriage are well recognised in Hindu Jaw. (5) If a promise is made of such a gift for or at the time of the marriage, that promise may be fulfilled afterwards and it is not essential to make a gift at the time of the marriage, but it may be made afterwards in fulfilment of the promise. (6) Some decisions go to the length of holding that there is a moral or religious obligation of giving a portion of the joint family property for the benefit of the daughter and the son-in-law, and gift made long after the marriage may be supported upon the ground that the gift when made fulfils that moral or religious obligation.13. I am unable to see how 'he guardian administering the estate of a ward can deal with the; estate on the ground of conferring spiritual benefit or welfare or bliss upon the minor. The duty of the guardian is to preserve the estate, augment its resources and manage it as best as he or she can, promoting the interests of the minor just as much as a prudent owner will manage his own property. The guardian has no right or duty to acquire or accumulate for the minor any store of spiritual welfare or benefit.Any analogy between the powers of a Hindu widow acting for the spiritual welfare of her husband and for her own spiritual welfare and the guardian of a minor's estate can only result in strange anomalies. Even the widow's powers in this respect are very restricted. She can act for a purpose conducive to the spiritual welfare of the husband, but she cannot act in order to acquire or confer upon he, sole self any spiritual benefit. Punyasanchayana is indeed very meritorious and Hindu law givers have not ignored it even in relation to mundane matters.But I do not conceive it to be part of the guardian's duty to earn piety or spiritual bliss for the ward, in exchange or commutation of a portion of the estate however small or negligible it may be. Even benevolent acts may lose their odour or sanctity when they are sought to be done by dip-ping into the purse of others. Any recognition of power in the guardian to do acts of piety for and on behalf of the ward is fraught with danger as the Hindu law abounds in multitudes of pious acts and as pious guardians are many, not to speak of those who become attracted to piety for the nonce. I have no hesitation in overruling the contention of Mr. Gopalaswami Aiyangar based upon the doctrine of spiritual bliss drawn from the cases governing a widow's power of alienation.14. The distinction between the legal capacity of a property guardian of a minor and a Hindu widow inheriting her husband's estate is well brought out in the following decision of this court. In Palani Ammal v. Kothandarama Goundan, 1943-2 Mad LJ 432 : A.I.R. 1944 Madras 91, a Division Bench of this court refused to uphold a deed of gift executed by the mother acting as the guardian of her minor son in favour of the minor's aunt in connection with her marriage. At page 433 (of Mad LJ) , their Lordships observe as follow :"It is now argued that what can be done by the manager of a family and what can be done by a widow in possession of the family properties can be done also by a widow as guardian of her infant son who is the owner of the properties. No authority has been cited which bears directly on this point. The learned Advocate General has rolled strongly upon Ramaswami Aiyar v. Vengidasami Aiyar, ILR 22 Mad 113. A widow has full power to deal with the estate subject of course to the ordinary restrictions of a widow's right to alienate, but here the owner of the estate is not; the widow at all but the plaintiffs. We see no reason why we should hold in the interests of a donee that a marriage gift which can be made by the manager of a joint family can also be made by the guardian of the only person now constituting the family. Such a gift can be validated only if it is made for purposes binding upon the minor. It is not contended there that the minor, had he been a major, would have been compelled to make the gift. He could have pleased himself whether he made the gift or not."The decision was followed in Rangaswami Iyer v. Marappa Gounder, 1952-2 Mad LJ 506 : A.I.R. 1952 Madras 230 by Venkatarama Iyer, J. as he then was. The Mysore High Court also followed it in a decision reported in Rama Setti v. Ibbanna Setti, A.I.R. 1954 Mysore 56.15. The application in form is one for payment out of a sum of money to the guardian from and out of the estate. But in substance it is really an application for sanction of gift of part of the minor's estate for a. specific purpose, viz., the marriage of the sister of the minor wards. The certificated guardian has no such power and it will be beyond the competence of this court to sanction an expenditure which is not warranted in law.As stated already, the court should not be swayed by considerations of propriety or the meritorious nature of the object of the expenses, as the court in which the property is vested and which is acting through the medium of its manager, or delegate, the property guardian, owes a duty to the minor wards to administer the estate in accordance with the law of the territory. The result may be unfortunate but is one which cannot possibly be helped. I hold that the court has no power to sanction an ex gratia payment from out of the minors" estate even for the marriage of the minors' sister, in the instant case. I therefore disallow the guardian's prayer for payment out.16. In the result, the application is dismissed.Application dismissed.
"1961 AIR (Mad) 153" == "1960 (2) MLJ 386,"