B.DAYAL, J. - (1.) WE have to answer a question referred to us by a learned single Judge. The question referred to is as follows : - "Whether this Court has jurisdiction, in the exercise of its powers under Cl. 12 of the Letters Patent to appoint a guardian of minor and to pass orders with regard to the custody of such a minor" ? Clause 12 of the Letters Patent of this court is as follows :- "And we do further ordain that the said High Court of Judicature at Allahabad shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the said territories as that which is exercised in the Bengal Division of the Presidency of Fort William by the High Court of Judicature at Fort William in Bengal but subject to the provisions of any laws or regulations now in force". Apparently the power has been conferred upon this Court by Cl. 12 aforementioned. On behalf of the opposite party the contention is that this power upon the Court is a dead letter. He has raised the following objections to the exercise of that power : (i) that Cl. 12 aforesaid does not confer any Jurisdiction upon the Court hut merely gives power to take proceedings which power according to him, must relate to the ordinary original civil jurisdiction of the High Court. As this Court has no ordinary original civil jurisdiction, it has no means to exercise the power. (ii) that the powers of this Court were not defined independently but are the same powers which the High Court of Judicature at Fort William in Bengal exercised in the Bengal Division of the Presidency of the Fort v. William his contention is that the Calcutta High Court has no power in guardianship matter outside the Presidency town of Calcutta except in respect of Europeans and by the words used in Cl. 12 above, the power which the Calcutta High Court is exercising outside the limits of Calcutta alone has been conferred upon this Court which means that it can exercise the power in respect of European subjects only. (iii) that by Cl. 12 aforesaid only such powers have been conferred on this Court which the Calcutta High Court was actually exercising and not the powers which that Court was vested with and for that contention learned counsel has emphasised the words"is exercised" used in Cl. 12 above; and (iv) that the power conferred is subject to other laws and regulations which may be in force at the time when, the power was conferred. The contention is that Act No. XI. of 3858 is such an Act which was in force when the Charter was granted to this Court and this Court, therefore, could not exercise any power in the matter of guardianship in. respect of non-European subjects.
(2.) WE are, after hearing learned counsel at some length, unable to agree with him for the following reasons :- Cl. 12 of the Letters Patent of this Court falls under the sub-head civil jurisdiction and it is plain that this power had been given to this Court in the exercise of its civil jurisdiction."Under that sub-head provision is made for extraordinary original civil jurisdiction (Cl. 9), for Second Appeals (Cl. 10), for First Appeals (Cl. 11) against judgments of the courts of original jurisdiction and lastly the power over infants, idiots and lunatics (Cl. 12). All these matters are matters of civil Jurisdiction and we are unable to see why the power to deal with the matters connected with infants, idiots and lunatics should be treated as a part of ordinary original civil jurisdiction only. In Hamid Hasan v. Banwari Lal Roy, AIR 1947 PC 90, their Lordships while dealing with the Letters Patent of the Calcutta High Court, observed as follows : - "Clause 12 defines the extent of the Ordinary Original Civil Jurisdiction. Later clauses confer upon the High Court appellate and criminal jurisdiction and special jurisdiction in insolvency and in Admiralty, Testamentary and matrimonial matters and over infants, idiots, and lunatics." Their Lordships of the Privy Council, therefore, treated this matter of infants as a special jurisdiction conferred upon the High Court by the Letters Patent apart from its Ordinary Original Civil Jurisdiction and there is no reason why the same should not apply to this Court and the power given in cl. 12 be treated as special jurisdiction conferred upon this Court.
(3.) MOREOVER , it may be noted that the power to deal with matters relating to infants, idiots and lunatics was really exercised by English Courts on behalf of the crown. It was not a jurisdiction directly vested in the Court itself. Thus it was a mere power exercised not under its own jurisdiction out as representing the Crown. In Hope v. Hope (1854), 43, E.R. p. 534 at p. 540 Lord Chancellor Cranworth observed as follows : - "The jurisdiction of this Court which is entrusted to the holder of the Great seal as the representative of the Crown with regard to the custody of infants rests upon the ground that it is in the interest of the State of the Sovereign that children should be properly brought up and educated and according to the principles of our law, the Sovereign, as parents patriae, is bound to look to the maintenance and education of all his subjects." We, therefore, do not see any difficulty in the exercise of this power which is conferred on this Court also by Cl. 12 of the Letters Patent, even though the word jurisdiction is not used in that clause and the clause does not confer a separate jurisdiction in that behalf.;