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Yeknath and ors. Vs. Warubai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom285
AppellantYeknath and ors.
RespondentWarubai
Excerpt:
minors' act xx of 1864 - minor--guardian--guardian of property guardian of person--necessity forissue of certificate of administration in order to complet appointment of guardian of property--no such necessity for appointment of guardian of person--age of majority--indian majority act ix of 1875--limitation. - .....march, 1873, an order was made appointing the nazir administrator and the mother-in-law of the minor guardian of her person; but no new certificate of ad ministration appears to have been granted.4. it has been contended for the defendant that under the circumstances the majority act does not apply. we think it doubtful whether, as was urged by mr. apte, the fact of a guardian having been once appointed is sufficient to bring the case within the first clause of section 3 of the majority act. the position of a minor after the death of the guardian does not appear to be changed by any provision of the minors' act xx of 1864, from what it was before the appointment. the intention of the legislature to be gathered from section 3 of the majority act would appear to be to extend the.....
Judgment:

Charles Sargent, C.J.

1. This is a suit to recover possession of a house in Pandharpur and a share in the vritti of the temple of Vithoba at Pandharpur to which the plaintiff claimed to be entitled on the death of her mother in 1866. The important question in the case is whether the suit is barred.

2. It is not disputed that the plaintiff was born in August, 1858; and it is contended for the defendant that she came of age in August, 1874, on attaining the age of sixteen, and that the suit, not having been brought till 1880, is, therefore, barred. On the other hand, the plaintiff contends that the Majority Act IX of 1875 was applicable, and that consequently she did not come of age till she was twenty-one, i.e., till 1879, and by the Limitation Act XV of 1877 the suit would not be barred before 1882.

3. The third section of the Majority Act makes it applicable, subject to the provisions of Section 2, to 'every minor of whose person or property a guardian has been or shall be appointed by any Court of justice,' and it provides that 'every minor under the jurisdiction of any Court of Wards, shall, notwithstanding anything contained in the Indian Succession Act (No. X of 1865) or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years, and not before.' In the present case a certificate of administration had been granted to one Appa Haribhat in 1867. But he died a short time after, and on the 21st March, 1873, an order was made appointing the Nazir administrator and the mother-in-law of the minor guardian of her person; but no new certificate of ad ministration appears to have been granted.

4. It has been contended for the defendant that under the circumstances the Majority Act does not apply. We think it doubtful whether, as was urged by Mr. Apte, the fact of a guardian having been once appointed is sufficient to bring the case within the first clause of Section 3 of the Majority Act. The position of a minor after the death of the guardian does not appear to be changed by any provision of the Minors' Act XX of 1864, from what it was before the appointment. The intention of the Legislature to be gathered from Section 3 of the Majority Act would appear to be to extend the minority to twenty-one where the minor's property or person was in the hands of guardian at the age of eighteen. But, however that may be, we think there was in this case a valid appointment of a guardian, at any rate of the person of the minor when the plaintiff arrived both at sixteen and eighteen years of age. Whether there can be said to be an appointment of a guardian of the property of a minor before a certificate of administration has been issued, has been much considered in the Calcutta High Court, as appears from the conflicting decisions in Stephen v. Stephen I.L.R. 8 Cal. 714 : I.L.R.9 Cal. 901 Chune Mul Johary v. Brojo Nath Roy I.L.R. 8 Cal 967 Nowbat Roy v. Lata Kedar Nath I.L.R. 13 Cal. 219 and Girish Chunder v. Abdul Selam I.L.R. 14 Cal. 55 . We agree with the opinion expressed by Garth, C.J., in Stephen v. Stephen I.L.R. 9 Cal 901 that, upon the proper construction of the Act XX of 1864 and the Majority Act of 1875, until the certificate of administration has been issued, there is no such appointment of a guardian of the property as will extend the age of minority from eighteen to twenty-one. Act XX of 1864 does not provide, in terms, for the appointment of a guardian of the property but only for the grant of a certificate of administration; and it is plain from the language of Section 2 of the Act that 'until he shall have obtained such certificate,' which can only mean 'until it has been issued,' a guardian of the property cannot be said to have been 'appointed,' by which is presumably intended one with the powers which by the Act are intended to be vested in him.

5. The case, however, is different as regards an appointment of a guardian of the person. The Act provides, in terms, for such an appointment being made, and no certificate of appointment is contemplated by the Act. This is clear from Section 10 and Section 31, and is made still dearer by the contrast between the grant of certificate of administration and the appointment of a guardian of the person which is so marked in the language of Sections 21 and 23. It is true that the rules of the Court provide a form of certificate of guardianship of the person; but on the language of the Act itself, and that must determine the question, it is plain, we think, that the appointment of a guardian of the person is complete on the order of the Court being made be appointing the guardian. In the present case it is admitted there had been such an appointment. The Majority Act is, therefore, applicable in our opinion, except so far as its operation may be excluded by the provisions of Section 2.

6. It has been contended for the defendant that to apply the Act to the present question would be to affect in the contemplation of Sub-clause (c) of that section the 'capacity' of the plaintiff, who had, it is said, by general Hindu law attained her majority in 1874, i.e., before the Majority Act had come into force. But the term 'capacity' obviously refers to the power to sue and contract, and cannot be deemed to apply to the 'liability' on arriving at majority to have time run against the right to file a suit as prescribed by the Statute of Limitations. But even if it could be so understood, the law applicable would be the Limitation Act of 1871, by which the time of arriving at majority was eighteen (notwithstanding that by the general Hindu law minority ceased at sixteen), and, therefore, the plaintiff would not have arrived at majority until 1876, i.e., after the passing of the Majority Act. Sub-clause (c) of Section 2 has, therefore, no application to the present case, We must, therefore, hold that the suit is not barred.


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