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Julieta Vs. Lila Coutinho and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberMisc. Petn. No. 251 of 1960
Judge
Reported inAIR1961Bom275; (1961)63BOMLR272
ActsIndian Succession Act, 1925 - Sections 212(2); Guardians and Wards Act, 1890 - Sections 3
AppellantJulieta
RespondentLila Coutinho and ors.
Advocates:Palan, Adv.
Excerpt:
letters patent (bombay), 1865. clause 17 - petition to high court for appointment of guardian of minor's property -- minor residing outside state of maharashtra but property situated within state -- whether high court can entertain petition.;the high court at bombay has jurisdiction to entertain a petition for an order appointing a guardian of the property of a minor who is residing outside the state of maharashtra but the property is situated within the state.;for the purposes of clause 17 of the amended letters patent of the high court, 1865, the high court at bombay has jurisdiction either if the infant is residing within the state of maharashtra or if the application concerns property situated within the state of maharashtra.;in re ratanji ramaji (1941) 43 bom. l.r. 926, s.b.,..........the provisions of the letters patent and the charter of the supreme court in the case of the bombay high court are in all material respects similar to those of the calcutta high court.6. i am of the opinion that as clause 12 of the letters patent of this high court of 1865 refers to not only the persons but also the estates of infants, idiots, and lunatics, this court would have jurisdiction under that clause either if the in infant is residing within the jurisdiction of the court or if the estate or property in respect ot which the application is made is situated within the jurisdiction of this court. when i refer to the jurisdiction of this court, it would mean not merely the limits of the ordinary original civil jurisdiction of this court but the entire state of maharashtra. on.....
Judgment:
ORDER

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 liabilities 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, toa 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 in 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.

4. My attention has also been drawn to the case of In re the Estate of H. G. Meakin, ILK 21 Bom 137 wherein some of the minors were at Poona, and one of them was in England. The parties were British subjects. Letters of administration to the estate of the deceased parent of the minors were granted in Bombay and the properly wa.s with the Administrator General in Bombay. In that case B. Tyabji J. made an order under the Court's inherent Jurisdiction appointing the petitioner guardian of even the minor child who was then residing in England.

5. My attention has also been drawn to the case of In re Tarunchandra Ghosh : AIR1930Cal598 wherein Lort-Williams J. has held that by virtue of Clause 17 of the Letters Patent of 1865, read with clause 16 of the Letters Patent of 1862 and section 9 ofStatute 24 and 25 Vie., Order 104, the powers of the Supreme Court were to be exercised by the Calcutta High Court, subject to the provisions of the Letters Patent establishing it, that the Charter of the Supreme Court gave that Court all the powers of the Court of Chancery in England ant provided by clause 25 thereof that the Supreme Court should be authorised to appoint guardian; and keepers for infants and their estates accord ing to the order observed in that part of Greater Britain called England and that since section 3 of the Guardians and Wards Act, 1890, saved that jurisdiction of the Chartered High Courts, the Calcutta High Court had power to make an order appointing a guardian of the property of the in infant residing Outside the Ordinary Original Civil Jurisdiction of the Calcutta High Court. The provisions of the Letters Patent and the Charter of the Supreme Court in the case of the Bombay High Court are in all material respects similar to those of the Calcutta High Court.

6. I am of the opinion that as clause 12 of the Letters Patent of this High Court of 1865 refers to not only the persons but also the estates of infants, idiots, and lunatics, this Court would have jurisdiction under that clause either if the in infant is residing within the jurisdiction of the Court or if the estate or property in respect ot which the application is made is situated within the jurisdiction of this Court. When I refer to the jurisdiction of this Court, it would mean not merely the limits of the Ordinary Original Civil Jurisdiction of this Court but the entire State of Maharashtra. On the reasoning of the said judgment in the case of In re Ratanji Ramaji 43 Bom LR 926 : AIR 1941 Bom 397 (SB), for the purposes of clause 17, therefore, this Court would have jurisdiction either if the in infant is residing within the State of Maharashtra or if the application concerns property situated within the Stale of Maharashtra- I am, therefore, now satisfied that I have jurisdiction to make the order applied for by this Petition.

7. So far as the application made by this petitioner for sanctioning the said sale is concerned, it appears that the property in question consists of a small open piece of land. It fetches no income and there are some liabilities though small, to be incurred in connection therewith by way of payment of taxes etc. It is, therefore, in my opinion, desirable that the said property should be sold. On the report dated 6th January 1960 of the architect Vasant K. Goregaonkar I am satisfied that the price of Rs. 3/- per sq. yard at which price the land is agreed to be sold by the said agreement of sale is a proper price. I, therefore, propose to make the necessary order are pointing the Petitioner ns the guardian of the two minor Respondents and sanctioning the sale on proper terms. The Petitioner's attorneys to put up before me for my signature the necessary order drawn up in the usual form.

8. Application allowed.


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