SEETHA BAI AND ANR. Vs. NARASIMHA SHET AND ORS.
HIGH COURT OF MADRAS
Seetha Bai And Anr.
Narasimha Shet And Ors.
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Kuppuswami Ayyar, J. -
(1.) THE appeal arises out of proceedings under the Guardians and Wards Act started by one Narasimha Shet, the grand -uncle of one Gopalakrishna, one of the two minors for whose properties a guardian was sought to be appointed. The other minor was Kamalaksha. The minors are the sons of one K. Ramachandra Krishna Shet who died on the 5th November, 1941, leaving behind him three widows, Sita Bai, Shanta Bai and another Sita Bai. Kamalaksha is his son by Shanta Bai and Gopalakrishna is his son by Sita Bai, the fourth respondent in the lower Court. The deceased owned some house property besides a, jewellery business. Admittedly it was joint family property in the hands of his sons. Narasimha Shet stated in his petition that all the properties of the late Ramachandra Krishna Shet devolved on his two sons by right of survivorship. There were no adult male members in the family. There were quarrels between the three widows and therefore a guardian was sought to be appointed for the properties of the minors. The widows claimed that they were entitled to a share in the property under the Hindu Women's Rights to Property Act, 1937, and that they were entitled to remain in possession as undivided members of the coparcenary consisting of the two minors and themselves and that no guardian should be appointed Shanta Bai, the mother of Kamalaksha, wanted, if a guardian is to be appointed, that she herself should be appointed as the natural guardian of her son. The learned District Judge found that the widows were not coparceners and observed:
In view of the misunderstandings and opposing claims made by the widows, I do not consider that it is desirable that any of the members of the family should be appointed as property guardian. It appears best in the circumstances to appoint an outsider to take charge of the properties to which the minors Kamalaksha and Gopalakrishna are entitled. Mr. K.P. Gopalakrishna Rao will be appointed as property guardian on his furnishing security for Rs. 3,000.
Sita Bai the first wife and Shanta Bai the second wife of the deceased have filed this appeal. Their contention is that as the properties of the two minors were properties of a joint Hindu family coparcenary, no guardian should be appointed. The next contention is that, if a guardian should be appointed, the mother Shanta Bai should be appointed guardian of Kamalaksha and no other.
(2.) THERE is no force in the contention that no guardian should be appointed because the property owned by the minors was their joint Hindu family coparcenary property. It is true that there are observations of the Privy Council in Gharibulla v. Khalak Singh, (1903) L.R. 30 IndAp 165 :, I.L.R. 25 All. 407 that it has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family. That is because in all such families there is a manager or karta who is entitled to be in possession of the properties on behalf of the family and no individual member of the family can predicate which property or what share in the property he will be entitled to, as it is a fluctuating interest. In the case before us the coparcenary consists of only the two minor sons and there is therefore no one who could be in juridical possession of the property as karta. The two widows are not members of the coparcenary. They may be members of the family. Under the Act the nature of their right is a widow's estate. The only right which they have analogous to that of a coparcener is the right to demand a partition. None of the widows could claim to be a manager of the joint Hindu family of which the two minors were members. It is not disputed that it has been held by other High Courts in India that, where the joint family consists only of minors, a guardian could be appointed in respect of the joint family properties of the minor members. The learned District Judge was justified in finding that in the particular circumstances of this case a guardian should be appointed for the two minors. With regard to Kamalaksha, it is stated that it has not been proved that there has been any act of mismanagement by his mother, his natural guardian, to justify her being removed and another guardian appointed. There is no evidence that she committed any act of mismanagement. It is true that she claimed an interest in the property under the Hindu Women's Rights to Property Act, 1937, but that it is a just claim and cannot be said to be adverse to the minors. If Shanta Bai the mother of Kamalaksha, furnishes security to the satisfaction of the learned District Judge within three months from to -day, she will be appointed as guardian of her son Kamalaksha in the place of Mr. K.P. Gopalakrishna Rao. The order appointing him as the guardian of the minor Gopalakrishna is confirmed.
(3.) WE make no order as to costs.;
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