Chidambaram Pillai and ors. Vs. Veerappa Chettiar - Court Judgment

Sadasiva Aiyar, J.

1. The defendants Nos. 1 to 4 are the appellants. The suit was brought upon two promissory notes, Exhibits D and E, executed by one Venkatachallam Pillai on the 9th October 1903 for Rs. 1,490, and on the 3rd October 1903 for Rs. 725 respectively. This Venkatachallam Pillai was the 5th defendant in the case, His lagal representatives (defendants Nos. 6 to 9; were brought on the record but they were exonerated by the judgment of the Court of first instance. They were not made parties either in the lower Appellate Court or in the second appeal to this Court. The liability of the executant, Venkatachallam Pillai, and his heirs need not, therefore, be directly dealt with in this second appeal.

2. The only question remaining in the suit is, therefore, whether the defendants Nos. 1 to 4 are liable on those two promissory notes, Exhibits D and E, executed by Venkatachallam Pillai. The sacoad promissory note, Exhibit H), was executed mainly for the interest due for three years on the first promissory note, Exhibit D. On calculation I fitil that of the Rs. 725 mentioned in this promissory note Exhibit E, nearly Rs. 630 is the amount of interest on Exhibit D, and the balance of Rs. 95 seems to have been borrowed for some purpose not disclosed.

3. Venkatachallam Pillai is executing the main pro-note Exaibit D describes himself in the body as the son of so and so and as the executor of the deceased Appukuttia Pillai's family under the Will executed by the said Appukuttia Pillai. He also signs the promissory note as Venkatachallam Pillai, executor of Appakuttia Pillai's family, and in Exhibit E describes himself similarly in the body of the document and signs merely as 'executor Venkatachallam Pillai.' In the plaint there is not a word mentioned that this executor of the Will of Appukuttia Pillai has got any right of indemnity against the estate of Appukuttia Pillai or the estate of the family or that the plaintiff is entitled to be subrogated to any such right of indemnity of Venkatachallam Pillai. The plaintiff seems to have felt that on a promissory note executed by an executor under a Will, the executor and his heirs alone are liable and that the estate of which he is the executor cannot be made directly liable. The law has been, in my opinion, finally settled to the above effect by the recent judgment of my learned brother and Abdur Rahim, J., in Swaminabha Aiyar v. Srinivasa Aiyar 38 Ind. Cas. 172 : 21 M.L.T. 91: (1917) M.W.N 278, where they refer to the English and Indian cases on this point, including the case in Srinath Daivasihamani Pandarasannidhi v. Noor Mahomed Routhan 17 M.L.J. 553 to which the late Chief-Justice was a party. The plaintiff, thus feeling the weakness of his claim against the defendants Nos. 1 to 4 (who belong to Appukuttia Pillai's undivided family), states in paragraph No. 10 of the plaint as follows: 'If for any reason, defendants Nos. 1, 2, 3 and 4 should contend that they are not bound to pay any amount, the 5th defendant is bound to pay that amount.' No doubt the first Court decided that the 5th defendant and his heirs are not bound and dismissed the plaintiff's suit as against them, but if the plaintiff, who put himself in the plaint on the safe side, wanted to continue to be on the safe side, he ought to have appealed against the judgment of the first Court exonerating the 5th defendant and his heirs or should at least have applied to the lower Appellate Court to have the 5th defendant's heirs made party-respondents to the appeal, so that the Appellate Court might pass a decree against them if the defendants Nos. 1 to 4 were exonerated. The lower Appellate Court also seems to have felt the difficulty of making the defendants Nos. 1 to 4 (of whom the defendants Nos. 2 to 4 are minors) liable on promissory notes executed by a stranger in his capacity as executor of the Will of Appukuttia Pillai (the father of the defendants Nos. 1 to 3 and the paternal uncle of the 4th defendant). But it gets over the difficulty by treating Venkatachallam Pillai, not as executor appointed by Appukuttia Pillai to look after the estate disposed of by the Will of Appukuttia Pillai, but as a guardian appointed by Appukuttia Pillai by his Will for his three undivided sons and his undivided nephew. The lower Appellate Court then considered that such appointment, as guardian by Will was valid and that the promissory note Exhibit D. executed to discharge the debt of Rs. 1,360 due under Appukuttia Pillai's prior promissory note Exhibit C. was also valid and binding on the minors. It also considered that, though the claim under Exhibit D is prima facie barred, the acknowledgment of liability made in Exhibit E of 1908 by Venkatajhallam Pillai as executor might be treated as an acknowledgment made by Venkatachallam Pillai as guardian. It further held that such acknowledgment as guardian bound the minors and that hence the claim under Exhibit D was also not barred.

4. I am reasonably clear that there being not a word in either of the promissory notes, Exhibits D and E, to indicate that Venkatachellam Pillai executed them as guardian of the defendants, the lower Courts were not entitled to treat such notes as executed by Venkatachallam Pillai, not in his capacity as executor under a Will, but as the lawful guardian of the defendants. In fact no reference to the minor defendants appears in either note. When a man expressly executes a promissory note as executor, he intends to bind himself personally and the creditor who lends on such a promissory note also intends only to get the benefit of the executor's personal liability under the promissory note. On this short ground I would set aside the judgments of the lower Courts and dismiss the suit as against defendants Nos. 1 to 4also, but under the circumstances without costs.

5. I would have stopped this judgment with the above paragraph but that several interesting and complicated legal questions were strenuously argued by the respondent's learned Vakil, on the basis that these promissory notes were executed by Venkatachallam Pillai as guardian of the defendants. Assuming that he is entitled to raise such contentions, I would deal with them very shortly (premising, however, that even in the Will, Exhibit F, executed by Appukuttia Pillai there is nothing said about Venkatachellam Pillai having been appointed as testamentary guardian of Appukuttia Pillai's sons and nephew and that I am unable to agree with the lower Appellate Court that the direction in the Will to the executor, to manage the property till the minors attain age constituted him as the guardian of the property). That Appukuttia Pillai had no right to dispose of the ancestral property by Will is clear Hindu Law as now settled, the properties with which, he professed to deal by Will being undivided family properties which passed by survivorship at his death to his sons and to his nephew. On principle I find it difficult to hold that a man who cannot deal with a particular species of property by Will can make arrangements for the management of that property by Will after his death or can appoint guardian to manage that property for minor owners who obtain it by survivorship after his death. It is only as regards self-acquired property which he could dispose of by Will in any manner he likes that he could logically claim to possess similar or lesser powers of allowing others to manage it for his minor heirs who take by inheritance or under the Will after his death. In Alagappa Iyengar v. Mangathai Ammangar 34 Ind .Cas. 766decided by myself and Moore, J., (who as District Judge decided the present case in the lower Appellate Court) it was held [following Kanakasabai Mudaliar v. Ponnusami Mudaliar 21 Ind. Cas. 848 decided by the present Bench], that 'as regards properties which survive to the minor son of a Hindu testator as ancestral family property on the fleath of the father, the father has no power to appoint a guardian.' The case in Kamkasabai Mudaliar v. Ponnusami Mudaliar 21 Ind. Cas. 848 has been followed also in Krishna Aiyar v. Chakrapani 29 Ind. Cas. 475 in this same Court. So far as the case in Soobah Pirthee Lal Jha v. Soobah Doorgak Lal Jha 7 W.R. 73 is concerned, that was-a case decided under the Bengal Law and the following sentence on page 76 affords the key to the decision in that case, which recognised the right of the father to appoint a testamentary guardian: 'It is not denied that as his own acquired pro-perty, Heera Lal might dispose of it as he pleased.' It is well known that under the Bengal Law, the son has no interest by birth in his father's properties. Similarly as regards the decision in Raj Lukhee Dabea v. Gokool Chunder Chowdhry 13 M.I.A. 209relied on in Mahableshwar Krishnapa v. Ramchandra Mangesh Kulkarni 21 Ind. Cas. 350 that was also a Bengal case. The testator was a zemindar whose sons had no right by birth and the testamentary gift was in favour of his two wives making them trustees tor the management of his estate even during his lifetime and giving them a beneficial interest during their lifetime but also only until his minor sons attained majority. The testamentary gift deed did not direct the line of succession. The Privy Council held that such a deed was valid against a reversioner; the minor sons having died during the widow's lifetime. There is nothing said in the decision about the guardianship of these minor sons or about the power of a person to appoint a guardian for the ancestral property of his minor sons who take such property by survivorship and not by succession. I think I ought to follow our own deaisions on this point and to respectfully dissent from Mahableshwar Krishnapa v. Ramchandra Mangesh Kulkarni 15 Bom. L.R. 882, which relies ' on Soobah Pirthee Lal Jha v. Soobah Doorgah Lal Jha 7 W.R. 73 and Raj Lukhee Dabea v. Gokool Chunder Chowdhry 13 M.I.A. 209which oases, however, as I have already pointed out, have nothing to do with the ancestral property obtained by minor sons by survivorship. The case in Ramchandra, v. Krishnarao 10 Bom. L.R. 279 is irrelevant in this connection, as it deals only with the power of the Court to appoint a guardian for minors forming a Hindu family group when there is no adult male in that family group. To sum up, (a) the promissory notes cannot be treated as executed by the guardian of the defendants; (b) the Will, Exhibit F, does not appoint Venkataehallam Pillai as guardian; and (c) Appukuttia Pillai cannot legally appoint a guardian for his minor sons and nephews by Will.

6. Assuming further, however, that there is a valid appointment of Venkataehallam Pillai as guardian of the defendant's properties, a guardian has surely no right to renew or to acknowledge debts unless it is for the benefit of the minors or unless the document appointing him as guardian gives, him such power. The Will, Exhibit F, does not give any such power to Venkataehallam Pillai to renew or to acknowledge debts and it makes him executor' only for managing the properties and to sell them for discharging the debts. See Alagappa Chettiar v. Subramania Pandia Thevan 23 Ind. Cas. 810 decided by Mr. Justice Wallis (as he then was) and myself, where we have held that a direction or power to discharge a debt., does not make the donee of the power an agent authorised to make payment of interest as such so as to keep alive the debt. See Linsell v. Bonsor (1835) 2 Bing. 241 : 132 E.R. 95 : 1 Hodges 305. The facts found in this caseby the lower Courts make it abundantly clear that the renewal under Exhibit 1) was not for the benefit of the minors. The old debt under Exhibit C carried interest only at 12 per cent.which was enhanced to 15 per cent.under Exhibit D. Again the document Exhibit E provides compound interest on the interest under Exhibit D at the same 15 per cent.and adds Rs. 95 further to the old debt. Not a word appears on the record as to the necessity for these renewals and acknowledgments.

7. In the result, viewed in any light, the lower Court's decrees against the defendants Nos. 1 to 4 cannot be sustained.

Spencer, J.

8. The principal questions for our decision are whether Venbatchallam Pillai, who was appointed under Appukuttia Pillai's Will to manage his family estate until his minor children attained majority, could give a valid acknowledgment of debts so as to extend the period of limitation for the payment of these debts secured upon two promissory notes, and whether the creditor can now recover the amounts out of the estate. In the Will, Exhibit F, Venkatachallam Pillai is described as an executor. The lower Courts have treated him as a guardian of minors. The learned District Judge cites the opinion of Mr. Justice Sale in the matter of Srisk Chunder Singh (12) to the effect that if executors are given the care and management of the property during an infant's minority, they are thereby constituted guardians within the meaning of the Guardians and Wards Act. From the tenor of the Will it. is evident that Venkataehallam Pillai's office was not to come to an end as soon as the debts could be paid off, the assets collected, and similar dispositions of the testator executed, but that he was to continue to look after the family property till the minors came' of Edge Undoubtedly there was an intention in the mind of the testator to create some kind of trust for 'the benefit and protection of his children and nephews and to put the management of the estate into the hands of a 'trustworthy person capable of taking pains and having an interest in the improvement of the family property,' as there was no adult male co-parcener available to cultivate, lease, and, if necessary, to sell the lands, raise loans, conduct the suits, and pay off the debt. It is argued for the appellant that Appukuttia Pillai had no power to appoint a guardian of the property of the minors where the property concerned was Hindu joint family property.

9. In Gharib ullah v. Khalah Singh 30 I.A. 165 the Privy Council observed that it was settled law in India that a guardian could not properly be appointed for the undivided share of an infant co parcener in Mitakshara family The reason is obvious. A guardian of property in such a case would have no right to divest the manager or the karta of his management of the joint family property and the appointment of guardian would thus in effect be a sinecure. Unless there was separate or self-acquired property to which the minor was entitled, there would be nothing for the guardian to manage. In that sense the appointment would be improper. But beyond saying that such an appointment of guardians by Courts would be improper, the Privy Council have not committed themselves to the opinion that under no circumstances would an appointment of a guardian of minors in a Mitakshara family be valid. The Bombay High Court has taken the view in Bindaji v. Muthurabai 7 Bom. L.R. 809 that a different principle must be applied to a case where all the co-parceners are minors and a guardian of the property is appointed for the whole group Sir Lawrence Jenkins suggested that the order of appointment should reserve liberty to any minor' of the joint family to apply on attaining majority to have the guardian removed or his powers restricted. The same High Court took a similar view when the question came up again as to the competency of a guardian of the property of minor co-parceners, whether the guardian's status was based on a mukitiamama of a deceased adult male as in Mahableshwar Krishnapa v. Ramchandra Mangesh Kulkarni 21 Ind. Cas. 350 or on an order of Court as in Ramchandra v. Krishnarao 10 Bom. L.R. 279. In the more recent case they justified the arrangement on the ground of practical convenience to avoid quarrels in a family consisting only of minors and widows. There the mothers of the nephews acquiesced in the arrangement, and in the case with which we are concerned it does not appear that the mothers of Appukuttia Pillai's sons or nephews took any objection to Venkatachallam Pillai's management at least before the present case came into Court. In the earlier cases the Judges considered that the guardian's appointment only became inoperative when one of the minor co-parceners came of age and they restricted the application of the general principle enunciated in Viru-pakshappa v. Nilgangava 10 Ind. Dec. 209 to that extent.

10. On the contrary this Court has declared in Kanakasabai Mwlaliar v. Pontmsami Mudaliar 21 Ind. Cas. 848 and Alagappa Iyengar v. Mangathi Ammangar 34 Ind .Cas. 766 and in Second Appeal No. 1660 of 1914, that a Hindu father has no right or power to appoint a guardian for the property of his minor sons, when the property is joint family property of the father and the sons. I was a party to the first and the last of these decisions and I have no doubt that they were rightly decided. The first was a case where the Court wa3 asked to remove a person appointed under a Will as guardian for the ancestral property of a minor and it was held' that the Court had no jurisdiction to interfere. Neither Section 7(2) nor 39 of the Guardians and Wards Act could be suitably invoked to give jurisdiction to the Court. The last decision dealt with the application of Article 44 of the Limitation Act to the oaf case of an alienation of property by a managing member who happened also to be described as a guardian of the minor member. I am not, however, prepared to say that Ramchandrn v. Krishnarao 32 B.k 259 : 10 Bom. L.R. 279 and Mahableshwar Knshnapa v. Ramchandra Mangesh Kulkami 21 Ind. Cas. 350were wrongly decided, or that there may not be exceptional oases in which a Hindu father may validly and with propriety appoint by Will a guardian to manage his undivided sons' estate during their' minority when there is no adult co-parcener to do so. Trevelyan on Minors, pages 83, 116, 117, appears to be an authority for saying that he can. There is no interference with the power of the manager when there is in fact no manager living or when the guardian and the manager are identical. Such a provision would be a natural act on the part of a prudent Hindu father dying without grown up sons or agnates. Although, as pointed out in Budhilal v. Morarji 9 Bom. L.R. 553, Section 47 of the Indian Succession Act has not been made applicable by the Hindu Wills Act to the Will of a Hindu, this Court has decided in Albrecht v. Bathee Jellamma 13 Ind. Cas. 453: (1912) M.W.N. 53 that a Hindu father is entitled to appoint by Will a guardian of the person of his minor child to the exclusion of its mother and this decision was followed in Alagappa Iyengar v. Mangathi Ammangar 34 Ind .Cas. 766

11. Be this power of appointment of guardians for the property of Hindu minors what it may, the fact remains that neither was Venkatachallam Pillai expressly declared by the Will to be a guardian of the minors nor did he sign the promissory notes (Exhibits B and E) by which limitation is sought to be extended as guardian, but as executor. I am satisfied that if he was a mere executor or trustee, the creditor who accepted his personal security for the loan of money had no right thereby to obtain a decree for execution directly against the trust estate, as though a charge had been created on the family property. Vide Swaminatha Aiyar v. Srinivasa Aiyar 38 Ind. Cas. 172 : (1917) M.W.N 278, to which I was a party, and also Williams on the Laws of Executors and Administrators, 10th Edition, Volume II, pages 1555-6 and 1634-6 and the cases of Farhall v. Farhall (1872) 7 Ch. App. 128: 20 W.R. 157 and In re Evans, Evans v. Evans (1887) 34 Ch. D. 597. The 'respondent has now lost his right of recovering the debts from the deceased Venkataohallam Pillai or his legal representatives and they are not parties to this appeal. I, therefore, agree with my learned brother that the second appeal must be allowed.