K P ALAGAPPA IYENGAR Vs. MANGATHAI AMMANGAR

JUDGEMENT

(1.) This appeal has arisen out of an application filed in the District Court of Tinnevelly under Sections 39, 10 and 7 of the Guardians and Wards Act of 1890. The petitioner in the District Court is the appellant before Rs. The prayers in the petition are (a) that the 1st respondent, namely the mother of the minor boy, may be declared the sole guardian of the minor and his estate, removing respondents 6, 7 and 8 if they should be deemed to have been appointed by the minor s father; (b) if necessary the petitioner or the 4th Respondent or any other fit and proper person may be appointed by the Court as guardian solely or with the 1st respondent for the minor s estate for both his person and estate, and (c) other fit and necessary orders be made.

(2.) Now the minor s father died on the 13th December 1911 and the Respondents No. 6, 7 and 8 set up that themselves and the 1st Respondent have been appointed by a will executed by the minor s father on the 11th December 1911 as the guardian of the person and properties of the minor. That will is Ex. I in the case. As Section 7, Clause 3 of the Guardians and Wards Act enacts that where a guardian has been appointed by will, an order under that section declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed and declared by the will have ceased under the provisions of the Act, the learned District Judge first considered the question of fact whether the will was genuine OT not. I think that on that question the District Judge came to a correct conclusion though I do not agree with some of his observations which seem to imply that burden of proving that the will was not genuine lay in the first instance on the petitioner-appellant. Whoever puts forward a will as genuine or supporting his contentions ought to prove it and cannot throw the burden of proving the negative on the opposite party. See Krishnamachariar v. Krishnamachariar (1913) I.L.R. 38 M. 166 : 21 M.L.J. 577. On the evidence however, as I said, I agree with the learned District Judge that the will is genuine. It is attested (among several others) by the testator s sister s husband and his son-in-law. It was produced by the widow (1st Respondent) for registration to the Sub-Registrar and till the 28th June 1913 (See Ex. VII) she admitted that it was a genuine and valid will. The evidence of the contesting Respondent s witnesses Nos. 1 to 4 satisfactorily establishes the genuineness of the will and that it was read out to the testator while he was of sound mind before he signed it From the papers Ex. F series it no doubt appears that the testator signed some blank papers with a view to having his testamentary intentions written over those signatures. But it is proved that a draft will had already been prepared under the instructions of the testator and even if the first five sheets of the will, Ex. I, had been signed in blank by the testator for the purpose of the fair will being written above those signatures and (if necessary) above the signatures in the Ex. F series sheets, lam clearly satisfied that the will as a whole after it had been fair copied was submitted to the testator and was signed by him in at least the 6th and 7th sheets, after it had been completed. And that is sufficient to make the will legally valid. See Namberumal Chetti v. Pasumarthy Kannia Chetti (1915) 28 I.C. 959. The evidence of the petitioner s witnesses that the testator was too ill on the date of the will to understand its contents is absolutely worthless. The reason why the widow (1st respondent) and the petitioner (who had himself admitted the validity of the will by his attestation of Exs. VIII and IX and under whose advice Exs. VIII and IX were presented to the police according to the evidence of the (1st respondent) now deny the validity of the will is clear from the statements in paragraphs 5 to 8 of Ex. VII. The way in which the petitioner s 1st witness (a petty clerk of the testator and his widow) contradicted his own statements in Ex. X and XI is also significant. I do not think it necessary to go into further details in respect of the evidence in regard to the genuineness of Ex. I. The explanation for not having it registered during the testator s life time seems to me to be not at all unreasonable or suspicious and might be accepted under the circumstances.

(3.) The next question is whether Ex. I is a will that has to be set aside under Section 39 of the Guardians and Wards Act. It need not and could not be set aside if the testator had no legal power to appoint a guardian for the property by will. Before going into that question there is a preliminary point for decision namely whether the will did appoint guardians (a) for the minor s person, and (b) for the minor s properties. After some hesitation, I have come to the conclusion that it does appoint the widow and the Respondents Nos. 6, 7 and 8 as guardians for both the person and property of the minor. The testator calls them "guardians" in the will and as he directs them to maintain the boy, perform his upanayanam to instal him in the Acharya s throne and so on. I do not think he meant to make any distinction between the guardians of the person and the guardian of the properties by the terms of his will Then comes the question as to whether the appointment is valid, first as regards the person and then as regards the properties. I think I ought to follow the case in Dr. Albrecht v. Bathee Jellamma (1911) 22 M.L.J. 247, where it was decided that a Hindu father has got the power to appoint by will a guardian. of the person of his minor child. Next as regards the properties there are two branches of the question to be considered. The first branch relates to the case where the properties disposed of by the will are alleged to be the ordinary private ancestral properties of a Hindu father and the second branch relates to the case where (as is alleged in the present will) the properties belong to a mutt or a religious institution. On the 1st branch of the question, there is a decision of this Court reported in Kanakasabai Mudaliar v. Ponnusami Mudaliar (1913) 22 M.L.J. 217, which clearly lays down that as regards properties which survive to the minor son of a Hindu testator as ancestral family property on the death of the father, the father has no power to appoint a guardian. That case has been followed by a single Judge of this Court in Krishna Aiyar v. Ghahrapani (1915) 20 I.C. 475, though the case in Soohah Doorhga Tola Tha v. Raja Neelanand Singh (1867) 7 W.R. 74 which was followed in Dr. Albrecht v. Bathee Jellamma (1911) 22 M.L.J. 247 seems to hold a different view. The actual decision in Dr. Abrecht v. Bathee Jellamma (1911) 22 M.L.J. 247 established the validity of the appointment by the father of the guardian only of the person of his minor child. One of the learned Judges who was a party to the decision in Dr. Albrecht v. Bathee Jellamma (1911) 22 M.L.J. 247 was also one of the Judges who remanded the case reported in Kanakasabai Mudaliar v. Ponnusami Mudaliar (1913) 21 I.C. 848 for a finding to the Lower Court on the issue as to self-acquisition which finding would be required only on the view that as regards joint family properties, a Hindu father has no right to appoint a person by will to be the guardian of such properties on behalf of the minor son. I would therefore follow the decision in Kanakasabai Mudaliar v. Ponnusami Mudaliar (1913) 21 I.C. 848 and hold that if these, properties were the ancestral private properties of the testator, appointment by will of a guardian of such properties was invalid. If they were, however, properties dedicated to a religious trust then no question of guardianship at all arises and no question therefore of removing a testamentary guardian. I might however state that, I am strongly of opinion that the properties belonging to this Thirumaligai and the similar thre? other Athan Thirumaligais are private properties and not trust properties and I prefer to follow the. decision of Sir Subramania Iyer and Davies, JJ. in A.S. No. 12 of 1903 (filed as Ex. 1 in this case) in preference to the decision (filed as Ex, XVIII) in A.S. No. 101 of 1873.