VENKATRAMAN MUKUND KAMAT Vs. JANARDHAN BABURAO KAMAT

JUDGEMENT

(1.) This is a suit by minors to set aside two deeds, Exhibits 85 and 86 of February 21, a June, 25, 1921, executed by their father Mukund in favour of their cousin, Janardhan, defendant No. 1, who is a nephew of Mukund, Shortly stated these deeds are in the nature of management deeds both in the life-time of Mukund and after his death during the minority of. the minors. They also, taken together, confer a personal interest upon Janardhan, inasmuch as although he is to be under liability to account for the corpus, he is not to be liable to account for the income of the property, but is to pay certain expenses and a fixed sum as representing the balance during the minority of the minors. On Mukund's death the minors were young children, and approximately the deeds would operate for a term of some thirteen years. The points of law are whether Mukund had power thus to deal with the family property over this term of years, and in particular to make this provision as regards a fixed lump sum as being payable in lieu of the actual interest. Incidentally a question of law arises as to whether a Hindu father has any power at all to appoint guardians of the property, as opposed to the persons, of his minor sons after his death, whether by will or by deed inter vivos.

(2.) I do not propose to deal in any detail with these two deeds. It is sufficient for my purpose to state that at the date when they were executed Mukund had no adult son, but only two minor children besides some five ladies who were dependent on him, viz., his two wives, and a widow of a deceased son, and two daughters. Consequently Janardhan, defendant No. 1, was his nearest male relative and the person whom he naturally might look to for assistance. As regards the two wives, the elder, Janaki, defendant No. 2, had no children. The other one, Saraswati, the mother of the minors, was quite a young woman of about twenty- two or thereabouts. The learned trial Judge has formed a somewhat unfavourable opinion of the latter's business capacity and has drawn our express attention to the fact that her father was a man in embarrassed pecuniary circumstances. It is suggested that it is this father who is largely responsible for the present litigation. It also appears, as is recited in the documents, that Mukund at the time he made them, was in bad health, that he was no longer able to manage the properties himself, and that consequently he brought in his nephew Janardhan to assist him, It may be taken that Mukund was about sixty or sixty-one at the date of these deeds, and that he died in the following year, viz., in May 1922. We may also note in passing that in between these two deeds he executed a will on May 10, 1921, but, as the learned Judge points out, that does not affect the question before us.

(3.) I mention these facts as they are very naturally relied on as showing that the deeds which Mukund entered into represented a reasonable business arrangement which was one for the benefit of the family and the minors in particular. As regards the first deed, Exhibit 85, that was in the nature of a deed of management, and is called a trust deed or power of attorney. It says :- "And you are fit to be accepted as my trustee or my constituted attorney. I have therefore accepted you as my legal constituted attorney to do the following things, viz., to carry on vahivat from this day on my behalf and on behalf of minors, of all my immoveable and moveable properties or estate and the outstandings mentioned below, excepting some properties kept with me which I shall dispose of in my life- time or only up to my death, and up to the time my said two sons come of age after my death, in case I die hereafter before the said two sons come of age." Then it deals with the performance of certain religious ceremonies and making payments for the education of the sons. There are provisions for keeping accounts which are to be inspected by a panch and for cultivating the lands, and for paying certain sums for maintenance to the two wives, i. e. Rs. 24 to the senior wife and Rs. 75 to the junior wife for herself and her children, and certain other expenses, and that the balance should be invested in the manner therein mentioned, If the trust is not accepted, then there is to be no objection to the Court taking over the management. The deed then provides : "And having appointed you to do the above things, I have this day given the whole of the estate into your possession." Then it sets out the various particulars including moveables as well as immoveables.