NARSI TOKERSEY AND CO Vs. SACHINDRANATH GAJANAN GIDH NO 2
HIGH COURT OF BOMBAY
NARSI TOKERSEY AND CO
SACHINDRANATH GAJANAN GIDH (NO2)
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(1.) [His Lordship, after setting out facts and issuer proceeded.] The date of birth of defendant No. 1 shows that at the date of the institution of this suit defendant No. 1 was over the age of eighteen years and under the age of twenty-one years and the position is the same today. The plaintiffs contend that the appointment of the father as guardian of the property of these minor sons under the inherent jurisdiction o! this Court is not the appointment of a guardian of the property of the minor under Section 3 of the Majority Act (IX of 1875) because no appointment of the guardian of the property of a minor coparcener can be made, where there are adult coparceners, as the minor has only an undivided interest in the joint family property. In other words, they say that Section 3 of Act IX of 1875 contemplates the existence of separate property of the minor to which the guardian must be appointed.
(2.) I will first deal with the case law on the point. There can be no doubt that under the Guardians and Wards Act VIII of 1890 no guardian can be appointed of a minor coparcener s interest in the joint family property where there is any adulfc coparcener alive. This has been laid down in the cases of Kajikar Lakshmi v. Maru Dev (1908) I.L.R. 32 Mad. 139 Bindaji v. Mathurabai (1905) I.L.R. 30 Bom. 152 s. c. 7 Bom. L.R. 809 and the Privy Council case of Gharib-ul-lah v. Khalah Singh (1903) L.R. 30 I.A. 165 s. c. 5 Bom. L.R. 478. In the Privy Council case a certificate of guardianship, which was throughout the case assumed to be of the property was granted under Section 8, Act XL of 1858, to the mother as guardian of a minor coparcener and the judgment of their Lordships which was delivered by Sir Arthur Wilson states as follows (p. 170):-
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. And in their Lordships opinion those decisions are clearly right, on the plain ground that the interest of a member of such a family is not individual property at all, and that therefore a guardian, if appointed, would have nothing to do with the family property.
Now the certificate in that case was granted tinder Act XL of 1858 which was succeeded by the Guardians and Wards Act VIII of 1890. But it is to be noted that later on in their judgment at the same page of the report their Lordships, in dealing with the question of the certificate granted to another of the respondents who was also a coparcener but; concerning whose age there was some doubt, state (p. 170);-
If it be true that the respondents mother was appointed guardian of the second respondent as well as of the third (as seems to have been assumed in India), that appointment might under Act XL of 1875, Section 3, have the effect of prolonging the minority of that respondent until he attained twenty-one.
Therefore their Lordships expressed the opinion that although the certificate of guardianship was granted under the Act XL of 1858 the construction of Section 3 of the Majority Act IX of 1875 might have the effect of prolonging the period of minority notwithstanding that in fact a guardian could not properly be appointed under Act XL of 1858 of a minor coparcener s interest in the joint family property.
(3.) Further, the cases show that where the guardian is appointed under the inherent jurisdiction of the High Court such an appointment is valid. In Re Jagannath Ramji (1893) I.L.R. 19 Bom. 96 Mr. Justice Starling held that the High Court had power to appoint guardian of the person and property of minor coparceners whether such minors possessed property or not. He states (p. 98):-
There is no doubt that the Court of Chancery has always had the power of appointing guardians to infants on a proper case being made out, whether such infants have property or not-- see In re Spence (1847) 2 Phil. 247, 252. In re Fynn (1848) 2 De G. & Sm. 457, 481-though it is ordinarily not necessary for a Court to interfere in oases where there is no property- Wellesley v. The Duke of Beaufort (6). This power was possessed by the Supreme Court of Bombay under its charter, and was, amongst other powers, preserved to the High Court by the 24 and 25 Vict., c. 134, Section 9; and the Guardians and Wards Act VIII of 1390 also reserves the game power to the High Court.
Indeed Section 3 of the Guardians and Wards Act provides that nothing in that Act shall derogate in any way from the jurisdiction of the High Court. The High Court, therefore, has in a proper case the jurisdiction which the Court of Chancery possessed to appoint guardians of the person or property of minors, Then, in the case of In re Manilal Hurgovan (1900) I.L.R. 25 Bom. S. c. 3 Bom. L.R. 411, f. b. our own Appeal court held that under its general jurisdiction the High Court had power to appoint a guardian of the property of a minor who is a member of a joint Hindu family and where the minor s property is an undivided share in the family property. In that case the inherent jurisdiction was exercised in order to effect a sale of the family property and the Court considered it a proper case for the appointment for the reasons given by Sir Lawrence Jenkins C.J. at page 357 of the report. I, therefore, hold that the High Court has jurisdiction to appoint a guardian of the undivided share of a minor coparcener where there are no adult coparceners in a joint Hindu family.;
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