Oldfield, J.
1. The first and important of the two orders before us was passed by the District Judge of South Arcot on a petition for the removal of first respondent from her position as testamentary guardian of the person and property of a minor Thirugnanavalli Ammal, for the appointment of the petitioner or any other fit person in her stead and for connected reliefs. Against that order there is an appeal by the petitioner and also a revision petition.
2. I deal first with the respondent's preliminary objection to the appeal, that this order, consisting in a refusal to remove a guardian is not appealable under Section 47, Guardians and Wards Act (VII of 1890) and is final under Section 48. The order, as it stands, is certainly of that character, its conclusion being that the Court is not prepared to remove the guardian on any of the grounds stated in the petition and that the petition is dismissed; and the objection is supported by authority which I am prepared to follow, Mohima Chunder Biswas v. Tarini Sunker Ghose (1892) I. L. R., 19. Pakhwanti Dai v. Indra Narain Singh I. L. R. (1896) Calc. 201. In re Bai Harkha I. L. R. (1896) 20 Bom., 667. and Imtiaz-un-nissa v. Anwar-ul-lah I. L. R. (1898) All., 433. But the objection has been met by the arguments,(1) that the order is really one declaring a testamentary guardian under Section 7 (1) (b), and, as such, appealable under Section 47 (a) and (2) that as the right of a Hindu to appoint a testamentary guardian is not recognized by the law and first respondent's appointment was a nullity, there was no necessity for the Court to remove or to refuse to remove her and its order must be regarded simply as one refusing to appoint petitioner, which is appealable under Section 47 (a).
3. The first of these arguments can be dealt with shortly. It rests solely on the facts that the lower Court in its order has referred to first respondent as the testamentary guardian, has affirmed her fitness for the appointment and found against the conduct alleged as disqualifying her for it. But all that was relevant to the prayer for her removal and did not amount to the making of a declaration, which was not made in terms, which neither party has asked for, which the lower Court was not conscious that it was considering and in regard to which the procedure enjoined in the Civil Rules of Practice, Chapter XI, was not employed.
4. The second argument calls for fuller discussion notwithstanding that, as I shall hold, there is ground in any event for interference with the order before us in revision, because a conclusion against the legality of first respondent's appointment as guardian will be relevant, not only to the question whether that order is appealable, but also to the merits in the further enquiry to be held, since, if she has not been legally appointed, the question will not be of her right to retain the appointment, but only of her eligibility for it in competition with the petitioner or any other candidates. It is not disputed that by a will, dated 6th July 1915, the father of the minor-left her his separate property, worth (it is said) several lakhs of rupees and purported to appoint first respondent guardian of her person and property. But it is argued that the terms of a decision of a Full Bench of this Court in Chidamhara Pillai v. Rangasmni Naicker I. L. R. (1918) Mad 561 require us to hold generally against the right of a Hindu to appoint a guardian of a person or property of his child by will, not only when the property is, as it was in that case, ancestral but also when it is, as in this case, separate. It is not disputed that this is the only authority, by which the argument can be supported, and we must therefore scrutinize its terms to see whether they entail the acceptance of any principle applicable to the present case. Such scrutiny is the more clearly required, when, as appears from the fuller report of the arguments in the Madras Law Journal of Chidambara Pillai v. Subbayya Pillai : (1918)34MLJ381 the experienced vakil for the petitioner, who attacked the appointment, conceded that it would have been valid, if the property in question had been separate. It is further to be observed that the decision does not deal with guardianship of the person, except in the statement of Coutts Trotter, J., that the appointment of such a guardian may be a natural right vested in the father.
5. What is urged, however, is that each of the judgments refers generally to the absence of any recognition in Hindu Law of the father's right to appoint a posthumous guardian for his children and that Section 6 of the Guardians and Wards Act authorizes only such appointments as are valid by the law to which the minor is, subject. If that were indeed the effect of the judgments, the arguments under consideration would no doubt be established. But to take them in order---that of Ayling, J., refers to the necessity for careful consideration, if the existence of such a power is to be recognized on the sole grounds that its exercise is not forbidden and is expedient, and then decides against its existence on the ground, irrelevant in the case before us, that it would run counter to the conception of a Hindu joint family. Seshagiri Ayyar, J., no doubt refers first to the absence of any foundation for the existence of the power in Hindu Law or as a common law right recognized by other systems of jurisprudence. But he then enters on a survey of the case law, to which I return, observing for the present only that many of the authorities cited dealt with the joint family property, with which he was directly concerned, that he distinguished one case on the ground that the property in question was self-acquired and that he explained the recognition of a testamentary power of appointment in certain statutes on the ground that they
referred to cases, in which such power is permissible under the law, for example cases of self-acquired property in Madras.
6. It may in the circumstances be doubted whether these learned Judges intended to negative the existence of a testamentary power generally or otherwise than in connexion with joint, family property. Coutts Trotter., J., alone, if I understand him correctly, adhered to the argument that absence of a statutory basis for the power or of any basis for it except natural right was conclusive against its existence generally and, in connexion with separate as well as family property. We are not in my opinion debarred by Chidambara Pilial v. Rangasami Naicker I. L. R. (1918) Mad., 581 from scrutinizing petitioner's argument on its merits.
7. In doing so I make no attempt to follow the demonstration that testamentary guardianship in other systems of law has had no origin independently of statute. That demonstration before the Full Bench did not, it may be observed, include any reference to the mention of testamentary guardianship in the Twelve Tables (Mackeldey's Roman Law, Ed. Dropsie Section 621 note) or to the former practice of the Ecclesiastical Courts in England in respect of personal property (vide Simpson on Infants, 3rd Edition, page 203) and the complication of the matter in respect of real property by the existence of feudal rights, which 12 Charles II, chapter 24, was passed to determine; and it is therefore doubtful whether the argument, so far as the Roman and English systems were concerned, was exhaustive. We are, however, on firmer ground in confining attention to India. It may be said at once that it is useless to look for this or any other testamentary power in Hindu texts, which recognise no power to make a will or execute an instrument to take effect after executant's death at all. It may in fact be suggested that the powers to appoint a testamentary guardian and to make a will were, as regards any demonstrable or legitimate origin and until the Hindu Wills Act in 1870, on the same footing. The real justification for the one, as for the other, is that it has been exercised from the earliest times after the reception of English Law without objection and with the countenance of the legislature and the Courts. It is urged that this is inconclusive, when the will-making power can be explained in terms of legal conceptions always current in-India, whilst the appointment by will of a guardian cannot; and we have been referred to the suggestion in the Tagore Case (1872) I. A. Supp. 47. of a connexion between wills and gifts inter vivos. But this suggestion, like others considered by Mr. Mayne at page 366, Hindu Law, 9th Edition, is at best conjectural; and, if conjecture as to the origin of the power in dispute is necessary when the argument in its favour is based primarily on its exercise and recognition, it is easy in a country where the distinction between legal and beneficial ownership has always been neglected, to explain the testamentary appointment of a guardian of property in terms of the execution of a trust, the similar appointment of a guardian of the person following by mistaken analogy or on the ground of mere convenience.
8. The reply to the contention that such appointments have been continuously recognized by the legislature has been that such recognition is always subject, as it is under Act VIII of 1890, to their validity under the personal law of those concerned; but it is difficult to suppose that any such reservation was contemplated in Sections 18 and 19, Madras Regulation V of 1804 in connexion with permanently settled estates, the owners of which have in almost all instances been Hindus; and none is conceivable in connexion with Section 3, Hindu Widows Re-marriage Act (XV of 1856). It is true that the Hindu Wills Act (XX of 1870) did not apply Section 47 of Indian Succession Act (XV of 1856) to Hindu wills; but that section, evidently based on the statute of Charles II, was framed with reference to the wills, which the Succession Act controlled and the result of the failure to apply it to Hindu wills was only to limit the privilege of testamentary appointments to adult testators and the authority of the commentators follows the evident intention of the legislature. In a case of 1807 referred to in Strange's Hindu Law, Volume II, page 72, the Pandit recognised, apparently as a matter of course, that the father's testamentary nomination of his brother as guardian should prevail against the claim of the natural guardian, the widow; and, if the Court's compliance with this view was, as Mr. Colebrooke suggests, in the exercise of its discretion, that was natural where the testamentary power itself was still in controversy. Later, Trevelyan on Minors, 3rd Edition, page 62 and the successive editions of Mayne's Hindu Law and Usage are clear, Chldambara Pillai v. Rangasami NaicherI. L. R. (1918) Mad. 561 being referred to in the last edition of the latter as relating only to guardianship of family property.
9. The conclusion in favour of the right of testamentary appointment is supported indirectly by the fact that except in Budhilal v. Morarji I. L. R. (1907) Bom., 413. where the point was taken but not decided, we have not been shown that unless perhaps in two cases any general objection to such an appointment was ever suggested before the decision of Madras Pull Bench, although in several cases, for instance Venkayya Garu v. Venkatanarasimhulu I. L. R. (1898) Mad., 401. Sami Row v. Eliavatha Row : (1906)16MLJ357 . and In the matter of Srish Chunder Singh I. L. R. (1894) Cal 206. such an objection, if sustainable, would have been conclusive. Of those two cases, Alagappa Ayyangar v. Mangathai Ammangar I. L. R.(1917) Mad., 672. related to guardianship of the person and Soobah Doorgali Lal Jha v. Rajah Neelanund Singh (1867) 7 W. R., 74. to guardianship of the property. There seems to me no reason, in view of the considerations already referred to, why the former decision should not be followed, although it appears to have been based entirely on Albrecht v. Bathee Jellamma : (1912)22MLJ247 . in which the validity of the appointment was, so far as appears, not disputed. The second authority calls for closer consideration, because Sadasiva Ayyar, J., in Alagappa Ayyangar v. Mangathai Ammangar I. L. R. (1917) Mad., 672. understood it apparently as contemplating an appointment in respect of family property whilst Coutts Trotter, J., in Chidambara Pillai v. Rangasami Naicker I. L. R. (1918) Mad. 561 thought that it referred only to a possibility and contained no definite decision. The answer to Sadasiva Avyar, J., is however given in the judgment of Seshagiri Ayyar, J., in the case last mentioned that self-acquired as well as family property was in question; and his further comment is significant.
In respect to such property it can hardly be disputed that it is open to the testator to appoint a guardian to manage it.
10. The recognition of that right in Soobah Doorgah Lal Jha v. Rajah Neelanmd Singh (1867) 7 W. R., 74. seems to me, with all respect for Coutts Trotter, J., clear. No doubt the learned Judges there, as they avoided finding on the genuineness of the will relied on, were compelled to adjudicate so far as the family property was concerned with reference to representation and, so far as the separate property was concerned, with reference to estoppel and they conceded that the will in respect of the family property was in any event inoperative. But their treatment of both pleas depended on their conclusion that if the will was genuine, it conferred a definite legal character and that the Courts dealing with the earlier litigations and the then respondent in connexion with a foreclosure were justified in assuming that it did so. No doubt the learned Judges in referring to the will as operative as regards the guardianship, said that it was not so as regards the family property. But it should be remembered that in the previous litigation relating to that property, the suit of 27th July 1848, the guardianship was in dispute only between the alleged testamentary and the natural guardian, for both of whom the separate character of the property was common ground. This decision given in 1867 has not, so far as is shown, been subjected to adverse comment until now and it, in my opinion, corroborates strongly the inference based on the materials already considered. I hold that a Hindu can appoint a guardian of the person and property of his child by will, that the appointment of first respondent is not a nullity and that therefore the present appeal does not lie and must be dismissed. No order as to costs.
11. We are, however, asked by a separate petition to interfere with the lower Court's order in revision on the ground that it has failed to exercise its jurisdiction in respect of its omission first to consider certain allegations that first respondent has alienated the minor's estate without justification. The facts are that in paragraph 17 (a) (b) (c) and (e) there are allegations of misappropriation by first respondent for the benefit of or at the instance of second respondent, who under the will is associated with her in the management of the minor's property and that the lower Court dismissed them on the sole ground that under the will first respondent is not to be required to account in respect of her management. Whether evidence to prove these allegations was offered is not clear; but it would have been useless to offer any, when a different ground of decision had commended itself.
12. It is not, however, possible for us to accept that ground, For, apart from the question whether the intention of the testator was that gross negligence or dishonesty by-first respondent should be condoned, the allegations in paragraph 17 (e) and (f) are not, as they are stated, matters of account, the contention that those in paragraph 17 (a) and (b) are so, because they relate to the disposal of the collections of the estate, cannot be accepted, when the suggestion is that the investment of those collections as corpus has been made with the object of benefiting second respondent. In this respect the lower Court failed to exercise its jurisdiction. We must therefore set aside its order and remand the petition for further enquiry. As the effect of charges, such as those in question, must be cumulative, all the allegations in the petition will be open to further consideration, before orders are passed. Costs of the Civil Revision Petition in this Court will be costs in the case and be provided for in the lower Court's order.
13. This result reached, it is unnecessary for us to consider the other failure to exercise the jurisdiction relied on in the Civil Revision Petition, the lower Court's omission to ascertain from the minor in person her wishes as to her guardianship and the proposal for her marriage, on account of which the removal of first respondent wan principally asked for. It is sufficient that neither the Guardians and Wards Act nor any authority makes such ascertainment obligatory and that the lower Court may very well have refrained from seeing and questioning the minor in the exercise of its discretion, an exercise which in view of her tender age was very likely sound and with which therefore we cannot interfere. In this connexion, however, we think it advisable to direct the attention of the lower Court to certain allegations as to the efforts by both sides to interfere with the custody of the minor's person and to prevent her from coming from Chidambaram to appear at the hearing. Some of these allegations were made in' this Court by affidavit in connexion with an application for temporary injunction and it is not disputed that some of them were also made orally on the last day of the hearing in the lower Court. It will be for the lower Court to consider after obtaining any definite statement which either party may wish to make regarding the facts whether anything has been done which would constitute a disqualification for the custody and guardianship of the minor and whether the appointment of an impartial third person as guardian of either the person or the property is not advisable.
14. In this connexion reference must be made to Civil Revision Petition No. 289 in which we are asked to revise an order by the lower Court granting an injunction restraining four persons specified, here petitioners, from taking steps towards the minor's marriage against 1st respondent's wishes. This order was passed on the day on which the guardianship petition was dismissed, on the oral application of 1st respondent's counsel. Whether such an oral application should have been listened to it is unnecessary to decide, but it may be observed that no special reasons appear for the deviation from ordinary practice involved. There are however other fundamental objections to what was done. For there was no proceeding before the Court initiated by the 1st respondent, in which even an interim injunction could have been granted, much less a permanent one, such as that before us. No notice was given to the persons, against whom the order was made; and they are not alleged to have been in fact present. There was no evidence by affidavit or otherwise adduced for the Court to act on and the statement in the order that the facts were not disputed is futile, when the persons concerned to dispute them, those against whom the order was asked for, never had an opportunity to do so. It is difficult to understand how any one concerned can have thought that a permanent injunction granted in such a way could be legal. The Civil Revision Petition must be allowed with costs against 1st respondent, the injunction being dissolved.
Devadoss, J.
15. I entirely agree with the order passed by my learned brother and the reasons therefor, and I wish to add a few words of my own on the question of a Hindu father's right to appoint a guardian by will for his minor children, as it is a question the decision of which, one way or other, will affect millions of His Majesty's subjects in this Presidency.
16. Mr. A. Krishnaswami Ayyar who appears for the appellant-contends that under the Hindu Law a father has no right to appoint a guardian by will for his minor son, and relies for his contention on the Pull Bench ruling in Chidambara Pillai v. Rangasami Naicker I. L. R. (1918) Mad. 561. His argument is that 'it is settled law that a father cannot also appoint a guardian for his minor son by will when there is a joint family property, and that, he cannot appoint a guardian for him if he bequeaths to him his separate or self-acquired property, for that would mean the existence of two guardians, one in respect of joint family property and one in respect of his separate property. Even if the Hindu father is the sole surviving member of a joint family, lie cannot appoint a testamentary guardian for his son, who by birth acquires an equal right with the father in ancestral property. The right to appoint a guardian does not go with the right to make bequests. For a testator cannot appoint by his will a guardian to a minor legatee, who is not his child, and a Hindu who is not empowered by Hindu Law to appoint a guardian for his son cannot claim the right by virtue of his being able to leave his son some of his own property, and it is illogical to say that he can appoint a guardian in respect of his separate property when he cannot do so in respect of joint family property. Wills and testaments were unknown to Hindu Law and therefore a Hindu father has not, by his personal law, a right to appoint a testmentary guardian for his minor children. The right to appoint a guardian by will or testament is a creation of statute in England, and there is no statute law in India empowering a Hindu father to appoint a guardian by will.'
17. The real question for consideration is:---Has a Hindu father the right to appoint by will a guardian for his minor son? It is considered as settled law that he cannot appoint a guardian to manage the joint family property, as the manager of the family is the guardian of all minor members. The last surviving member of a joint family cannot appoint by will a guardian for his son to manage the family property, as it is said to be inconsistent with the theory of survivorship. If the father has not the right to appoint a guardian by will for his minor son by virtue of his power of disposition of his separate or self-acquired property, for it is a well-known principle of law that a testator cannot appoint a guardian for a minor legatee only by reason of the disposition in his favour, a testator can appoint trustees to hold property for a legatee and that does not depend upon the legatee being a minor. So the right to appoint a guardian for a minor son is to be sought for elsewhere than in the power to bequeath the property to him. A father as well as a mother have obligations as well as rights in respect of their children during minority. The penal law prescribes a penalty for abandoning a child and punishes any one who kidnaps a child under a certain age from the rightful guardianship. The father has the right to the custody of the children against all the world till a court of law sees fit to take away the guardianship from him. Under the Hindu Law a father can give away a boy in adoption. The mother can give a boy in adoption only with the express permission of the father. Even where a father is a junior member of a joint Hindu family he alone has the right to give the boy in adoption. The managing member of a joint-family has not the right to give in adoption any junior member who is not his own son. The Hindu Law recognises the right of the father as paramount in this respect to that of the managing member of the family. The Hindu Law permitted the father to sell his son. If such is the right of the father why could he not appoint by will some one to look after the minor son during his minority? The answer is that the Hindu Law does not permit it. On a close examination it will be found that it does not prohibit or discountenance such an appointment. Wills being unknown to Hindu Law no provision is found in the authorities as to the power of a father to appoint a testamentary guardian for his minor son. The text on which reliance is placed is placitum 27, in Chapter 8 of Manu;
The property of a student and of an infant, whether by descent or otherwise, let the king hold in his custody, until the owner shall have ended his studentship, or until his infancy shall have ceased in his sixteenth year.
18. The chapter is headed 'on judicature; and on law, private and criminal.' From the said heading, the text appears to be a direction to the King's Judges to do what is proper in the case of an infant when his property has to be protected. There is nothing to show that in the case of infants the father could not exercise his right of guardianship. No doubt the king's power was paramount. But that is no ground for saying that the father did not exercise or could not exercise his right as guardian of his own minor son, for if lie had had no power over his son how did it allow a father to give away his son in adoption thereby cutting off the son from all the benefits that would accrue to him in his natural family. Nor does the text in any way infringe or take away the right of the manager of a joint family to have the guardianship of the minor members. I take it, though not without some hesitation, that the direction is only to the Judges to decide causes that might come up before them. Whatever may be the meaning of the text, I think there is nothing in the Hindu Law to prevent a Hindu father appointing a guardian for the person of his minor son.
19. The argument urged against this view is that there can only be one guardian for a minor and that there cannot be one guardian for the person and another for the property. No doubt there cannot be two guardians for one and the same property of a minor. But there is nothing in law or reason or equity to prevent there being two guardians, one for the person and one for the property. The Guardians and Wards Act expressly permits the appointment of more guardians than one---vide Section 15, Clauses (4) and (5). Where it is not permissible to appoint a guardian for the property of a minor, a guardian for the person alone can be appointed by testament. The case in Virupakhappa v. Nilgangava I.L.R. (1895) 19 Bom., 909. decided by a Full Bench of the Bombay High Court is sufficient authority for this position. It is sheer pedantry to seek for texts or authority in ancient law books for giving relief suitable to the conditions now prevailing. The Code of Mann was intended for a primitive society which has long since ceased to exist. Now would it be possible to enforce the law contained, for instance, in the following texts in Chapter VIII?
270. 'A once-born man, who insults the twice-born with gross invectives ought to have his tongue slit; for he sprang from the lowest part of Brahmin'.
271. 'If he mention their names and castes with contumely, as if he say 'Oh Devadatta, thou refuse of Brahmans', an iron style, ten fingers long, shall be thrust red hot into his mouth'.
380. 'Never shall the king slay a Brahman, though convicted of all possible crimes: let him banish the offender from his realm, but with all his property secure, and his body unhurt'.
371. 'Should a wife, proud of her family and the great qualities of her kinsmen, actually violate the duty which she owes to her lord, let the king condemn her to be devoured by dogs in a place much frequented'.
81 in Chapter IX: 'A barren wife may be superseded by another in the eighth year. She whose children are all dead, in the tenth; she who brings forth only daughters, in the eleventh, she who speaks unkindly, without delay.'
20. It is unnecessary to quote further examples from Manu to show the utter unsuitability of applying wholesale the directions or laws contained therein to the present society. It would be as absurd to apply the Code of Manu in its entirety to the present society as to apply the levitical law to modern Europe. When the family or clan lived in a small village it was deemed prudent to live jointly, to have one manager and to prevent alienation. Hut to-day a member of a joint family may live in England or America while the other members live in this Presidency. If it is said that a father cannot appoint by will a guardian for his minor son because there is some joint family property, what is to happen to a minor whose father dies in California or South Africa? If the boy happens to be a minor at the date of his death, no one can take charge of hint or look after the property till an undivided cousin or a distant relative in India takes steps to protect, him. If a successful member of the bar or a member of the Viceroy's council who is a Hindu sends his son for education to Eton or Harrow and dies before his son attains his age, should the boy foe left to the tender mercies of an ignorant coparcener by reason of the misfortune that the family owned an ancestral hut in a small village in the Presidency? The Court has to take into account the modern conditions in giving effect to ancient, texts or law that was considered valid and binding once but which has been departed from for generations. The Hindu Law as now obtains has departed in many vital respects from the law that was codified if such an expression could be used with regard to the Code of Manu, perhaps 2,000 years ago.
21. The Law of Wills has grown up quite within recent times and judicial decisions have recognized the validity of Hindu wills, and the Hindu Wills Act has put the matter on a satisfactory basis. The following passage from West and Buhler, 4th Edition, page 618, note, illustrates the opposition to the recognition of wills by courts. 'Mr. Ellis thought that a Hindu could not make a will at all. Strange's Hindu Law, 419. It is obviously opposed to the Brahminical family system and to the interest of the ancestral manes in the estate out of which sacrifices to them are to be provided. A general opinion unfavourable to the testamentary power was expressed by native judicial officers consulted in Bombay in 1864. But the principle obtained early recognition, though but a qualified one, that what could be given away during life could be bequeathed by will.' Whether the law of wills has grown out of the power to make gifts inter vivos or not, it is unnecessary to enquire. It is sufficient for the present purpose to say that wills had come to be recognized as valid by a long course of decisions before the Hindu Wills Act was passed. The power of a father to appoint a guardian for his minor son by will was recognized in Soobah Dooraah Lal Jha v. Rajah Neelaund Singh(1867) 7. W. R., 74. All writers on Hindu Law without exception have recognized the right. Writers like Mayne, Trevelyan and Gour have accepted the father's right to appoint a testamentary guardian as unchallenged. It was the consciousness of the people in this Presidency that a father could appoint a testamentary guardian for his son. Till the decision in Chidambara Pillai v. Rangasami Naicker I. L. R. (1918) Mad., 561 was given, no one seriously disputed the right of the father to appoint a guardian for his minor son. With due respect I must observe that the decision in Chidambara Pillai v. Rangasami Naicker I. L. R. (1918) Mad. 561 is not only against the consciousness of the people but is opposed to their notion of the law on the subject. The point that was referred to the Full Bench in Chidambara Pillai v. Rangasami Naicker I. L. R. (1918) Mad., 561 was 'Whether it is competent to the only adult coparcener of a Mitakshara family consisting of himself and his minor coparceners to appoint a testamentary guardian to the coparcenery properties of the minor coparceners'? And the answer given was in the negative. Seshagiri Ayyar, J., tries to explain Soobah Doorgah Lal Jha v. Rajah Neelanund Singh (1867) 7 W. R., 74. on the ground that the property dealt with was the self-acquired property of the testator. If the father had no power to appoint a testamentary guardian he could not acquire the right merely because he had self-acquired property. There are remarks in the judgment to the effect that there is nothing in the Roman Law or English Common law which empowers a father to appoint a guardian for his minor children. Mr. Moyle in his book on Roman Law at page 13 with regard to the twelve tables makes this observation, 'Nor did they include the leges regise, law and religion having now been differentiated. Much again relating to the effects of legal acts and dispositions which was the matter of common knowledge and formed no subject of dispute remained, as we might say, 'Common Law' the familiar possession of every citizen. Leage in his book on Roman Law describes the various kinds of tutela. Tutela testamentaria was appointed by will. The duties of tutela are set out at page 101 of his book. Pollock and Maitland in their History of the English Law ah page 312 trace the origin of wills to very early times.
We may believe that even in the first days of Christianity the Church was teaching that the dying man was in duty hound to make such atonement as possible for the wrongs that he had done and to devote to the relief of the poor and other pious works a portion of the wealth that he was leaving behind, him..... From the middle of the ninth centaury we begin to get documents which are spoken of as the Anglo-Saxon Wills and Testaments.' Vol. 2, page 312.
22. With regard to guardianship the learned authors make this observation at page 413 of the same volume:
This part of our law will seem strange to those who know anything of its next of kin. Here in England old family arrangements have been shattered by seignorial claims, and the King's court has felt itself so strong that it has had no need to reconstruct a comprehensive law of wardship. That the king should protect all who have no other protector, that he is the guardian above all guardians is an idea which has became exceptionally prominent in this much governed country. The king's justices see no great reason why every infant should have a permanent guardian because they believe that they can do full justice to infants.
23. The testamentary power was hotly opposed by the king and his officers while it was sedulously supported by the Church and its dignitaries. Finally the Church triumphed. Until recently the Ecclesiastical Courts dealt with all testamentary matters and granted probate. So it was necessary in the time of Charles It to have a statute empowering a father to appoint a testamentary guardian. This does not mean that under the Common Law the father had not the right of guardianship but under the peculiar tenures obtaining in England and the law of primogeniture the power of the father to appoint a guardian for his heir was resisted till the legislature had to intervene. There is nothing in the law of tenures in this country to militate against the right to guardianship of a father, and therefore it cannot be contended that that right was denied in ancient times. The decision in Chidambara Pillai v. Rangasami Naicker I.L.R. 1918) Mad., 561 can only govern cases where a testamentary guardian is sought to be imposed upon the coparceners of a joint Hindu family. It cannot be extended so as to take away the right of a father to appoint a guardian for the person of his minor son.
24. The source of law is custom, judicial decisions and statutes. The custom as now prevalent recognizes the father's right as shown by the numerous wills in which a guardian is appointed for the minor children by fathers; and the judicial decisions have recognized the right at least from the times of Soobah Doorgah Lal Jha v. Rajah Neelanund Singh (1867) 7 W. R. 74. and the fact that the correctness of that decision has not been questioned for a long number of years can only be attributed to the consciousness of the people that it was in accordance with the custom prevailing among the people. I am led to make these observations in the hope that the decision in Chidambara Pillai v. Rangasami Naicker (1918) I.L.R., 41 Mad., 561 (F.B.) will come up for reconsideration before long.
25. In the present case the minor is a gild. She can have no community of interest in property with her father. The question of joint family status cannot come in. I hold that it is the inherent right of a father to have the custody of his minor children and that right is transmissible by will or testament, and there is nothing in the Hindu Law to prevent such transmission.
26. There is a further argument which I need only mention for it has not been pressed before us, that is, the applicability of the Code of Manu to the Dravidians of this Presidency. The English Judges who administered justice in the days of the East India Company took their law from the Pandits who always looked up the ancient texts for guidance. The more ancient the text the greater was its sanctity, and ergo its binding character. This view was sedulously propogated by the Pandits and the Judges who were ignorant of the customs of the people, naturally adopted the view of the Pandits. This question need not be pursued further. But it should be remembered when it is sought to apply wholesale what is foreign to the Dravidians, to the conditions now prevailing. The Courts in India are enjoined to decide cases according to justice, equity, and good conscience where no specific rule exists. There being no specific rule against the appointment of a testamentary guardian by a father for his minor children either in Hindu Law or in any valid custom, I hold that a father has power to appoint by will a guardian for the person of his minor children whether there be joint family property or not; and that right does not depend upon the father being able to devise by will any property to his children for whom he appoints a guardian.