JULIETA Vs. LILA COUTINHO

JUDGEMENT

(1.) THE Petitioner Mrs. Julieta Coutinho has filed this Petition in this Court's general and inherent jurisdiction for an order that the petitioner may be appointed guardian of the right, title and interest of the two respondents, who are minors, in the property at Eksar and that the Petitioner as such guardian may be authorised to sell the said immovable property on the terms and conditions of an agreement of sale dated 31st January 1960 and for certain other consequential reliefs. One Ciriaco Bernardo Coutinho died on 3rd May 1951 leaving the Petitioner who is his widow and four children, two of whom are now majors and the other two, being the two respondents in this petition, who are minors. The parties are Indian Christians and are governed by the Indian Succession Act. The said deceased has left no will. He left a small immovable property situated at Eksar which is within the Greater Bombay. That property consists of an open plot of land admeasuring 1964 square yards and is the only property left by him. The parties being governed by the Indian Succession Act, the widow lias a one-third share and the two minors are each entitled to a one-fourth of the remaining two-third share. As the said deceased was and the parties are Indian Christians, the provision of section 212 (2) of the Indian Succession Act applies and the rights of the minors can be established before me although no representation has been obtained to the estate of the said deceased.

(2.) THE two respondents, being the minors, are residing at Karwar, i. e. , outside the State ot Maharashtra. The said property in respect ot which this petition has been filed, however, is situated within the State of Maharashtra and as a matter of Fact within the original civil jurisdiction of this Court. As the minors have been stated to be residing outside the State of Maha-tashtra, I wanted to be satisfied that this Court would have jurisdiction to entertain this petition and make the order applied for therein.

(3.) MR. Palan, the learned Counsel appearing on behalf of the petitioner, has drawn my attention to the case of In re Ratauji Ramaji, 43 Bom LR 926: (AIR 1941 Bom 39") which is a judgment of a Special Bench of this Court. In that case one of the points which arose for decision was whether this Court had under its inherent jurisdiction power to appoint a guardian of the property of a minor who was a member of a joint Hindu femily, whose property was an undivided share in the family property, and who resided outside the town and island of Bombay but within the Province of Bombay as it then was. The minor in that case was residing at Ahniedabad and the properties of the joint family were also situated in the District of Ahmedabad. The question relevant For my purposes which arose tor decision in that case was whether the jurisdiction of this Court extended to a minor resident in the Bombay Presidency but outside the Town and Island of Bombay, that is, outside, the ordinary original civil jurisdiction of the Court. In that connection it was held in that case that the jurisdiction of this Court to sanction a contract for the benefit of a minor extends, at any rate, to a minor resident within the Presidency of Bombay. The judgment of Beaumont C. J. , however, specifically states that his decision in connection with that question must not be taken as indicating any opinion as to what would be the position if the minors were resident outside the Presidency of Bombay. The position in the case before me is however different inasmuch as the minor is residing not only outside the ordinary original civil jurisdiction of this Court, but even outside the State of Maharashtra. The reasoning whereby the learned Chief Justice arrived at his said conclusion should be noted. The learned Chief Justice has pointed out that clause 17 of the Amended Letters Patent of 1865 of this Court provides that "the High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estate of infants, idiots, and lunatics within the Bombay Presidency, as that which was vested in the said High Court immediately before the publication of these presents" and that the power and authority vested in the High Court at Bombay immediately before the coming into force of the said Letters Patent of 1865 was, under the combined operation of clause 16 of the Letters Patent of 1862 and clause 37 of the Supreme Court Charter of 1823, the same as that exercised by the Court of Chancery in England. The learned Chief Justice pointed out that, therefore, the jurisdiction, which it was intended to confer on the Supreme Court, was jurisdiction, to exercise the powers of the Crown as parens patriae, those powers being exercised in England at first by the Lord Chancellor, afterwards by the Court of Chancery and at the present time by the Judges of the Chancery Division. The Chancery Court has exercised jurisdiction over infant British subjects residing anywhere in the world (see Hope v. Hope, (1854) 4 De. G. M. and G. 328 ). In this connection Kania J. in his judgment in the said case of In re Ratanji Ramaji, 43 Bom LR 926: (AIR 1941 Bom 397) (SB) came to the conclusion that wherever the minor be, or wherever his estate be, the High Court would have jurisdiction over him in view of the wide provisions contained in clause 17 of the Letters Patenb provided, of course, the minor owed allegiance to the Sovereign.