(Petition (disposed of on 24-11-1942) under S. 25 of Act IX of 1887, praying the High Court to revise the decree of the Court of the District Munsif of Tiruturaipundi, dated 31st October, 1941 and passed in S.C.S. No. 261 of 1941.)

Kuppuswami Ayyar, J.



1. The defendant is the petitioner and he seeks to have the decree passed against him in S.C.S. No. 261 of 1941 on the file of the District Munsiffs Court of Tiruturaipundi revised. He is a minor and the suit was for recovery of money due on a promissory note executed by one Viswanatha Iyer, his natural father, as his guardian on the 7th September, 1936, in favour of the plaintiff. The suit was filed only in 1941 and an endorsement of payment signed by Minakshi Animal, the natural mother of the defendant as his guardian, was alleged as saying the suit from being barred by limitation. It was pleaded that the natural father was not the lawful guardian of the defendant and that therefore the defendant cannot be made liable for a debt incurred on a promissory note executed by Viswanatha Iyer as his guardian and it was also pleaded that Minakshi Ammal was not the lawful guardian and that the endorsement of payment by her will not save the suit from the bar of limitation. The learned District Munsiff overruled both the objections and found that the promissory note was valid and binding on the defendant, that the suit was not barred by limitation and decreed the suit.



2. Therefore the only two points for consideration in this petition are (1) whether Viswanatha Iyer, the natural father of the defendant, was a lawful guardian and the promissory note executed by him valid and binding on the defendant, and (2) whether Minakshi Ammal was a lawful guardian of the defendant and the endorsement of payment signed by her was valid and binding on the defendant so as to save the suit from being barred by limitation.



3. In Chennappa v. Onkarappa(1939) 2 M.L.J. 884 : I.L.R. (1940) Mad.

3. 358 (F.B.), it was held by a Full Bench of this Court that no member of a Hindu family other than the father or mother has been recognised as having the right of guardianship and that no other relative can become the lawful guardian without an order of the Court. It is urged however in this case that Viswanatha Iyer and Minakshi Ammal were the lawful guardians because they happened to be the parents of the defendant. But it is contended that the defendant had been given in adoption and therefore the adoptive father and the adoptive mother alone would be the lawful guardians and not the natural father and the natural mother. The decision in Tirappayya v. Mallidi Ramaswami (1913) 24 M.L.J. 428 was relied on for the respondent. But that case proceeded as will be seen from the following observation in it, on a view not accepted by the Full Bench decision cited above.

The cases cited show that a person who is lawfully acting as guardian, though not legally appointed for the purpose, can bind his estate for necessary purposes, and, I think, that such a person is a lawful guardian within the meaning of Section 21 of the Limitation Act, 1908, when acting for the benefit of the minor.

In Sreenarain Mitter v. Sreemutty Kishen Soondery Dasee (1873) 11 Beng. L.R. 171 at 191 (P.C.), their Lordships of the Privy Council observed:

If the child was adopted, his natural father was not his guardian.

In Purushottam Ratno v. Brindavana Dass (1931) 33 L.W. 664, Ramesam, J., had occasion to review the case-law as regards the competing claims of the natural parents and the adoptive parents of a boy given in adoption and it was observed by him that, it does not follow from this that the natural parents can be regarded as guardians de jure.

At page 668 he observed:

This shows that the natural parent should not be regarded as the natural guardian of an adopted person.

Later on he observed:

It cannot be said that until appointment by Court the natural parents can be regarded as guardians de jure.

In Swaminatha Odayar v. Natesa Iyer (1933) 65 M.L.J. 350, which is a direct case in point, it was held by a Bench of this Court that even where the adoptive parents of a minor are dead, the natural father cannot be said to be his lawful guardian so as to entitle him to bind the minor by any promissory note executed by him as his guardian. At page 353 Reilly, J., observes:

Both his great-uncle and his great-uncles wife had died; but that would not make his natural lather, defendant 1, again his legal guardian. Under the Hindu Law the natural guardians of a minor are only his parents, and defendant I was legally no longer defendant 2s father after defendant 2s adoption. Defendant I was no more than what is often called a de facto guardian, that is, a person who arrogates to himself the charge of a minors person or property.

It was held that the promissory note was not binding on the minor. That is a case directly in point and it is a decision by a Bench of this Court.



4. It is urged for the respondent that the decision of the Full Bench in Chennappa v. Onkarappa (1939) 2 M.L.J. 884 : I.L.R. (1940) Mad.

3. 358 (F.B.) that the parents are the lawful guardians by reason of a universal usage or custom must be taken to indicate that it referred only to the natural parents and not to adoptive parents and it is also stated that it is not on any principles of Hindu Law that the decision in that case was based but on universal usage or custom. But it must be remembered that the ruling of the Full Bench has to be understood in the light of the observations of the Privy Council in Sreenarain Mitter v. Sreemutty Kishen Soondery Dasee (1873) 11 Beng. L.R. 171 at 191 (P.C.) already referred to. It cannot be said that the finding in Swaminatha Odayar v. Natesa Ayer (1933) 65 M.L.J. 350, which is based on the same view of the law as was the decision of the Full Bench in Chennappa v. Onkarappa (1939) 2 M.L.J. 884 : I.L.R. (1940) Mad.

3. 358 (F.B.) could be said to be incorrect.

5. Neither Viswanatha Iyer nor Minakshi Ammal was the lawful guardian of the defendant on the dates on which they purported to act in this case, one by executing the note and the other by signing the endorsement. Consequently the suit fails. The decree of the lower Court is set aside and the suit dismissed with costs in both the Courts.