MANILAL MAGANLAL Vs. KALIDAS MANILAL
HIGH COURT OF GUJARAT
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(1.)This is a petition filed by the petitioners for an order that the petitioners be appointed guardians of the undivided share of the minor respondents in the property particularly described in Exhibit A to the petition and that the agreement of sale of the said property mentioned in the petition be sanctioned as being for the benefit of the minor respondents and that the petitioners as guardians be authorized to complete the sale on behalf of the minor respondents. The order is sought from this Court in the exercise of its inherent jurisdiction. When this petition was presented I entertained some doubt as to whether this Court has inherent or general jurisdiction to appoint a guardian of the undivided share of a minor in a joint Hindu family and to sanction the sale on behalf of the minor. I therefore asked the learned Advocate appearing for the petitioners to address full arguments to me on this point. Since the petition is at this stage ex-parte I requested Mr. Kaji to argue amicus curiae and to present the opposing point of view if any.
(2.)Mr. Joshi the learned Advocate for the petitioners has contended that prior to the coming into force of the Bombay Reorganisation Act 1960 the High Court of Bombay had inherent or general jurisdiction to make an order appointing a guardian of the undivided property of a minor not only in case of minors residing within the town and island of Bombay but also in case of minors residing outside the town and island of Bombay but within the State of Bombay provided they were citizens of India and that since High Court of Bombay had that jurisdiction in respect of minors residing within the territories which now form part of the State of Gujarat this Court has inherited that jurisdiction by virtue of the provisions of section 30 of the Bombay Reorganisation Act 1960.
(3.)In support of this arguments Mr. Joshi has relied upon a judgment of the Bombay High Court In re Ratanji Ramaji (1941) 43 Bombay Law Reporter 926 In that case a special Bench of the Bombay High Court held that the High Court of Bombay had under its general jurisdiction power to make an order appointing a guardian of the undivided property of a minor who was a member of a joint Hindu family and who resided within the limits of its original jurisdiction that is to says the town and island of Bombay and that such jurisdiction extended also to a minor in a joint Hindu family who was a British subject and who resided within the presidency of Bombay. The source of that jurisdiction was traced to the prerogative of the Crown as parens patriae to protect subjects of the Crown who cannot protect themselves. Reliance was placed on clause 37 of the Chapter of the Old Supreme Court of Bombay clause 16 of the Letters Patent of 1862 and clause 17 of the amended Letters Patent of 1865 and the conclusion was reached that the High Court of Bombay could under its inherent or general jurisdiction appoint a guardian of the undivided property of a minor who was a member of a joint Hindu family even if the minor resided outside the town and island of Bombay but within the State of Bombay.
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