1. This is a petition filed by the two petitioners, who are the kartas and managers of their respective joint families consisting of themselves and their minor children, for an order that they may be authorised to alienate the shares and interests of their respective minor children, the respondents herein, in an immoveable property situate at Dammer Lane, and agreed to be sold by them to one Dattatraya Ramchandra Naik and to execute in favour of the purchaser the conveyance and all such assurances as they may be necessary, and that the sale of the property be sanctioned as being for the benefit of all the minor respondents.
2. The question that arises for my consideration on this petition is whether in accordance with the practice which has hitherto obtained, I should appoint the petitioners the guardians of the property of the minor respondents and sanction the sale or merely authorise the petitioners to alienate the shares and interests of the minor respondents as asked for by the petitioners without appointing the petitioners the guardians of the property of the minor respondents. It has been contended on behalf of the petitioners that the effect of my appointing them guardians of the property of the minor respondents would be to extend the period of their minority and that is a consequence which the petitioners do not desire should follow upon any order which I would make on this petition.
3. In support of their contention the petitioners drew my attention to an order which was passed by Mirza J. on December 15, 1926, where he merely authorised the second petitioner therein to alienate the share of his minor son in the family property therein mentioned and to execute in favour of the purchaser or his nominee the conveyance and all such assurances as may be necessary in respect of the same, and also sanctioned the sale, the same being for the benefit of the minor. In the said order the learned Judge also directed that the petitioners do set apart various sums therein mentioned for the marriage expenses and maintenance until marriage of the minor daughters of the petitioners therein. The petitioners also drew my attention to a report made by A.H. Kirtikar, the First Assistant Master of this Court, on date February 4, 1943, in Misc. No. 15 of 1943, wherein he referred to an order made on December 20, 1937, by Kania J. on a petition Misc. No. 138 of 1937, whereby the petitioner therein was authorised to carry into effect the agreement of exchange of property and was also authorised to sell the property which was the subject-matter of the petition at a certain price. On the strength of the two precedents thus cited before me it was contended by the petitioners that the Court has got the power to merely authorise the petitioners to alienate the shares and interests of the minors in the property agreed to be sold by the petitioners and to execute in favour of the purchaser the conveyance and all such assurances as may be necessary in that behalf. S.E. Engineer, the present First Assistant Master of this Court, who was appointed the guardian ad litem of the minor respondents herein, on the other hand, drew my attention to the uniform practice which has hitherto obtained of appointing the petitioners guardians of the property of the minors before sanctioning the transactions as being for the benefit of the minors concerned.
4. In view of the rival contentions above mentioned, I considered it necessary to have the matter argued out before me and I have had the benefit of the arguments of Sir Jamshedji Kanga for the petitioners and Mr. D.B. Desai who argued the matter on behalf of the respondents.
5. The jurisdiction which has been exercised by our Court in the matter of these petitions is the inherent or general jurisdiction apart from the Guardians and Wards Act VIII of 1890. This jurisdiction was assumed by the Court long prior to 1901 and the first reported case on the point is Jairam Luxmon. I.L.R.(1892) 16 Bom. 634 In that case Farran J. held that the High Court had the power, irrespective of the provisions of the Guardians and Wards Act (VIII of 1890), of appointing a guardian of an infant's estate and appointed the father who was the applicant the guardian of his infant sons for the purpose of raising money by the mortgage of his ancestral immoveable property on its appearing to the Court that by so appointing him guardian, better terms were likely to be procured from the mortgagee and the infants to that extent consequently benefited. The learned Judge expressed some doubt as to the propriety of making the order prayed for and stated that he should have liked the point to have come up for a fuller argument before a proper tribunal. He, however, made the order as it was likely to benefit the whole family, and, therefore, the minors, by securing better terms than would otherwise have been obtained from a purchaser or a mortgagee. This case was followed by Starling J. in Re Jagannath Ramji I.L.R.(1893) 19 Bom. 96 where it was affirmed that the power of the Court of Chancery to appoint guardians to infants, whether such infants had property or not, is possessed by the High Court. The learned Judge there held (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, ...though it is ordinarily not necessary for a Court to interfere in cases where there is no property....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 & 25 Vict., c. 104, Section 9; and the Guardians and Wards Act VIII of 1890 also reserves the same power to the High Court. Consequently, I consider I have the power of appointing the petitioner guardian of the persons and estate of his two minor children, and I do so.
The question of the appointment of the karta or manager of the family as the guardian of the property of an infant member of the joint family came up for consideration again in the year 1900 When a full bench of our Court decided in In re Manilal Hurgovan 3 Bom. L.R. 411 F.B. that the High Court has, under the general jurisdiction and apart from the Guardians and Wards Act VIII of 1890, 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. The full bench there definitely laid down that having regard to the long line of decisions of this Court, they thought, they ought not at that stage to repudiate this jurisdiction, and thus imperil the title to property which had been dealt with in reliance upon these decisions. They, therefore, held that this Court had power in such cases to appoint a guardian of the property of a minor. They, however, laid down that such power was to be exercised with the greatest caution. They made the appointment in that case because the person applying to be appointed the guardian was also the manager of the family to which the minor belonged and that they were not, therefore, introducing into the family any element of possible disturbance. The appointment was made expressly on the ground that the applicant was the manager of the joint family and they added that they could hardly imagine a case in which it would be right to grant such an appointment unless the applicant were the manager. After laying down this principle they went into the question whether they ought to sanction the proposed sale of the property, and after referring to the various considerations which converged to the same conclusion, they sanctioned the sale of the property. This decision of the full bench was a reaffirmation of the principle which had been so far followed by our Court that apart from the Guardians and Wards Act VIII of 1890 this Court had inherent or general jursidiction to appoint a guardian of the property of a minor who was a member of a joint Hindu family and where the minor's property was an undivided share in the family property, a jurisdiction which was the same that the Court of Chancery had in England, which was possessed by the Supreme Court of Bombay under its Charter and which was preserved to the High Court by 24 & 25 Vic. c. 104 Section O. The same jurisdiction has been conferred on the High Court by Clause 17 of the Letters Patent which runs as follows:
And we do further ordain that the said 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.
This jurisdiction was not at all affected by the enactment of the Guardians and Wards Act VIII of 1890 which by Section 3 thereof definitely laid down that nothing in the Act shall be construed to affect, or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by any High Court established in British India by Letters Patent.
6. This jurisdiction was exercised after the full bench decision in In re Manilal Hurgovan without any question and has been exercised by the Court up to date. Even though Kania J. in his decision in In re Dattatraya Govind Haldankar 34 Bom. L.R. 1156 on a reading of this decision in In re Manilal Hurgovan treated it as an exceptional case, refused to allow the Court to take upon itself the burden of sanctioning a transaction as for the benefit of the minor merely because the alienee required an order of the Court in that behalf and declined to relieve the karta or the manager from his responsibility in the matter of the proposed transaction, the practice of appointing the karta or manager as the guardian of the undivided share of the minor member of a joint Hindu family and sanctioning the transaction as being for the benefit of the minor was reaffirmed by our Appeal Court in In re Mahadeo Krishna Rupji : AIR1937Bom98 and has been since followed without any hesitation whatever in proper cases. Not only has it been followed in the case of minors residing within the limits of its ordinary original jurisdiction, that is to say the Town and Island of Bombay, but this jurisdiction has been extended also to a minor in a joint Hindu family who is a British subject and who resides within the Presidency of Bombay, by a decision of a special bench of our Court in In re Ratanji Ramaji. : (1941)43BOMLR926 It is stated that this power is derived from the prerogative of the Crown as parens patrice to protect subjects of the Crown who cannot protect themselves.
7. All this discussion, however, leaves open the question as to whether the Court in the exercise of this jurisdiction should of necessity appoint the petitioner the guardian of the property of the minor or can without making any such appointment authorise the petitioner to alienate the share and interest of the minor while sanctioning the transaction as being for the benefit of the minor. It is necessary, therefore, to consider what is really the basic principle underlying the exercise of this jurisdiction. The minors are otherwise known as infants in English law. Infancy is, in English law, the term applied to the period of life, whether in males or females, which precedes the completion of the twenty-first year, and persons under that age are called infants. The age of twenty-one years is called full age, and any one who has attained full age is competent to do all that the law requires or enables a person in his or her position to do, except in the cases of persons of unsound mind, idiots, and persons under disability on account of conviction for crime, and, to a certain extent, married women. But infants have a very limited power of legal action, and their interests are carefully protected by the law, since they are regarded as of immature intellect and imperfect discretion. (vide Halsbury's Laws of England, Vol. XVII, p. 582, para. 1251). The incapacity of infants is thus described by an old writer:
The law protects their persons, preserves their lights and estates, excuseth their laches, and assists them in their pleadings; the Judges are their counsellors, the jury are their servants, and the law is their guardian. (The Infant's Lawyer, Lond., 1712).
The incapacity of infants is thus laid down in Halsbury's Laws of England, Vol. XVII, p. 586, paras. 1257 and 1259:
An infant, being regarded as of immature intelligence and discretion, is under a general incapacity to exercise the rights of citizenship or perform civil duties; or to hold public or private offices or perform the duties incidental to them. For the same reason he is not, as a rule, permitted by law to do anything prejudicial to his own interests...
The same principle regulates an infant's capacity to acquire and dispose of property, and his incapacity in reference to legal proceedings instituted on his behalf or against him...
Infants have always been treated as specially under the protection of the King, who, as parens patriae had the charge of persons not capable of looking after themselves. This jurisdiction over infants was formerly delegated to and exercised by the Lord Chancellor; through him it passed to the Court of Chancery, and is now vested in the Chancery Division of the High Court of Justice. It is independent of the question whether the infant has any property or not.
This incapacity is really the reason why the law considers it necessary that a guardian of the person and property of the infant should be appointed. It is, therefore, laid down:
The disabilities of an infant and his legal incapacity to manage his own affairs render it necessary that for the protection of his interests and the management of his property he should have a guardian of his person and property, to whom he stands in the relation of ward. (Halsbury's Laws of England, Vol. XVII, p. 689, para. 1426).
To the same effect is a passage from Daniel's Chancery Practice, 8th Edn., Vol. I, p. 974:
The power of appointing guardians, and making orders for maintenance, constituted a part of the general and important jurisdiction which the Court of Chancery exercised for the protection of the property of infants, and the safe custody of their persons, during their minorities; this jurisdiction has been assigned to the Chancery Division, and may be exercised in a summary way by summons, without requiring a suit to be instituted.
8. This jurisdiction of the Chancery Court is exercised by the High Court in its inherent or general jurisdiction. Trevelyan on Minors (6th Edn.) also has similar observations to make with regard to the minors who are, as I have already stated above, the same as infants in England:
A minor is a person who has not attained the age of majority according to the personal law to which he is subject. This age is arbitrarily fixed by the law of each country, and is chosen with reference to the time of life at which persons are ordinarily capable of the management of their own affairs. (Chapter I, p. 1).
The incapacity of minors necessarily requires that the law should provide for the care of their persons and property by adult persons willing and able to look after the interests of minors committed to their charge. The persons having the care of the persons and the custody of the estates of minors are termed their guardians. (Chapter VIII, p. 48).
9. A minor being thus unable to deal with his interest in property, an alienation of his interest therein can only be effected by a person who is appointed a guardian of his interest in the property. In cases which are governed by the Guardians and Wards Act the Court has got the power under Section 7 of the Act, if satisfied that it is for the welfare of the minor that the order should be made, to make an order appointing a guardian of his person or property, or both, or declaring a person to be such guardian. In cases which are outside the purview of this Act and where the Court has, as in this case, inherent or general jurisdiction to appoint a guardian of the property of a minor who is a member of a joint Hindu family and where his property is an undivided share in the family property, the sole purpose of the appointment of the guardian is to do away with this disability or incapacity of the minor to deal with his interest in the property and to appoint a person who would act in the matter of the transaction in a manner in which the minor himself would have acted but for his disability. To quote the words of Beaumont C.J. in In re Ratanji Ramaji : (1941)43BOMLR926 :
It seems to me that an application of this sort is analogous to applications, which are very common in England, where a trustee, having power to sell property in which an infant is interested, comes to the Court to know whether he ought to exercise his power in a particular manner. The object of the application may be to save the trustee from possible actions for breach of trust in the future, or it may be to confirm the title of the purchaser. In cases of that nature it is the practice of the Judges of the Chancery Division by whom such applications are heard to consider very carefully whether the proposed sale, or whatever the transaction may be, is for the benefit of the minor, and, if so, to sanction the same. The result of sanctioning the transaction on behalf of a minor is to remove the disability of minority, and to place the parties in the same position as they would have been in if the minor was of age and approved the transaction. It seems to me that an analogous position arises when the manager of a joint Hindu family comes to the Court and asks it to sanction a sale as being for the benefit of a minor. The manager is not, of course, a trustee; but he has power to sell property, in which the minor is interested, for legal necessity or the benefit of the estate, without the consent of coparceners. Very frequently a purchaser insists on having the sanction of adult coparceners, so as to preclude them from challenging the sale in the future. A minor coparcener cannot consent because of his minority, and the object (as in the English cases) of coming to the Court and asking for its sanction on behalf of a minor is to remove the disability of minority and to protect the purchaser from attack by the minor after attaining majority.
The purpose therefore of an order made under the inherent or general jurisdiction of the Court is to remove the disability of minority, to sanction the transaction as being for the benefit of the minor and to provide a mode in which the consent of somebody is provided on behalf of the minor in a manner binding on the minor, to the entering into of the transaction which not only transfers or alienates the interest of the adult coparceners in the property but the interest of the minor also therein. The minor is thus in effect a party to the transaction of alienation. He being a minor cannot enter into the transaction and therefore a person is appointed by the Court to represent the minor and effect the transaction of the alienation of the minor's interest in the property just in the same way as the minor himself would have done if he had not been suffering from that disability. The only way in which this disability can be removed and the incapacity which the minor is suffering from by reason of his minority be cured is by appointing a guardian of his property who then would be authorised to enter into the transaction on his behalf. The only way in which law cures this incapacity of minority is by the appointment of a guardian of his property. A guardian of the property duly appointed by the Court whether under the Guardians and Wards Act or under its general and inherent jurisdiction stands in a fiduciary capacity towards the minor. A guardianship is a right, a duty and a trust. A guardian would be liable to render accounts of the sale proceeds of the property. He would be liable to render an account of his dealings with the property as such guardian. He would also be liable to the Court in the matter of the carrying out of all the directions which the Court has given to him in respect of the transaction which the Court sanctions as for the benefit of the minor. All these results would not be brought about merely by investing a person with authority to alienate the interest of the minor in the property and to execute a conveyance, etc., on his behalf, but would only be brought about by the appointment of a person as the guardian of the property of the minor. These were the difficulties which were envisaged by the Judges of the Allahabad High Court in the case reported in In the matter of Govind Prasad I.L.R.(1928) All. 709 where even though they held that the Court could exercise such jurisdiction with reference to the persons and estates of the infants, they hesitated to exercise the same in the case of a joint Hindu family. They pointed out (p. 712):
Another difficulty that must arise is in the proposed securing of the minors' interest in half the proceeds. Where is the money to be deposited, who is to be responsible for it, what rate of interest is to be paid on it, when is it to become available to the minors, and a number of other similar questions must follow where it is suggested that a wholly new practice is to be sanctioned.
No doubt we here are not trammelled by any such considerations. The practice of appointing guardians of the property of minors in such cases is well recognised and followed. The procedure in this behalf is clearly laid down, and these difficulties do not arise in our Court. These considerations are, however, of importance and material for the purpose of determining whether the Court should merely authorise a person to alienate the minor's interest in the property and to execute the conveyance, etc. in respect of the same or should appoint the person the guardian of the property of the minor and make him responsible to the minor as well as to the Court in the matter of the transaction. All these considerations lead to one conclusion and one conclusion only, viz. that the Court should appoint the petitioner the guardian of the property of the minor and not merely authorise him to alienate the minor's interest in the property.
10. In coming to the above conclusion I have not been unmindful of certain provisions which are contained in the Rules of the Bengal High Court and our High Court which in certain cases authorise the conveyance on behalf of a minor to be executed by the Registrar or the Commissioner. Rule 441 of the Original Side of the Bengal High Court as quoted in Trevelyan on Minors (6th edn.) p. 251, note (4), runs as under:
If any person certified by the Registrar to be a necessary party to a conveyance be a minor ... an order may be obtained, directing the Registrar to execute the conveyance for him in his name....The application shall be on summons, and shall be supported by an affidavit or affirmation of the facts, and it shall be shown that the person required to execute the conveyance was certified by the Registrar to be a necessary party, and that the conveyance has been approved of by such party or by the Registrar.
To a similar effect is Rule 504 of our High Court Rules:
If a person certified by the Commissioner to be a necessary party to a conveyance be a minor or otherwise under disability, or being sui juris shall neglect or refuse to execute the conveyance, an order may be obtained in the case of a person under disability appointing the Commissioner to convey the property, the subject of such conveyance, execute the conveyance for him and in his name,. .The application shall be on summons, and shall be supported by an affidavit or affirmation of the facts, and it shall be shown that the person required to execute the conveyance was certified by the Commissioner to be a necessary party, and that the conveyance has been approved of by such party or by the Commissioner.
These are cases, however, where the sale is ordered by the Court and where the Court may itself execute or may direct one of its officers or a receiver appointed by the Court to execute a transfer in the name of the minor. It has, however, been laid down that even in such cases the Court cannot enter into any covenant for title, for quiet enjoyment or otherwise on behalf of the minor. This goes to show that the act which is to be done by the Registrar or the Commissioner, as the case may be, is merely the act of appending the signature of the minor or person under disability to the document of conveyance. It does not amount to the removal of the disability of minority or to the making of the minor or the person under disability a party to the transaction as if he was not suffering from any such disability. A conveyance as is well-known contains various covenants including the covenant for title, for quiet enjoyment, etc., and these certainly would not be given by the Registrar or the Commissioner as the case may be on his behalf even though the Registrar or the Commissioner executed the document on behalf of and in the name of the minor. This result would, however, be achieved by appointing a person the guardian of the property of the minor. A guardian of the property of the minor duly appointed by the Court and authorised to enter into the transaction as being for the benefit of the minor would bind the minor effectively in all respects qua the alienee and would be able to enter into all these covenants including the covenant for title, for quiet enjoyment, etc. These provisions therefore instead of supporting the contentions of the petitioners go to show that in all these cases where even apart from the provisions of the Guardians and Wards Act the Court exercising its inherent or general jurisdiction sanctions an alienation as being for the benefit of the minor it should appoint the petitioner the guardian of the property of the minor, making him accountable both to the minor and to the Court in. his dealing with the property.
11. As regards the precedents which have been cited before me, I do not know under what circumstances Mirza J. came to pass the order dated December 15, 1926. It does not appear if this particular point of view which has been urged before me was brought to the notice of the learned Judge, and in the absence of any materials of this nature before me, I do not think I am bound to treat this order as a precedent for me to follow. As regards the order alleged to have been passed by Kania J. on December 20, 1937, in Misc. 138 of 1937, the order itself is unfortunately not before me. The only evidence of its contents is what is stated in paragraph 4 of the report of A.H. Kirtikar, the First Assistant Master of this Court dated February 4, 1943. All other orders which have been recited in that report appointed the petitioner the guardian of the interest of the minor respondent in the properties of the joint family. As to how the order passed by Kania J. on December 20, 1937, merely authorised the petitioner to sell the particular property, if it did so, without appointing the petitioner the guardian of the interest of the minor respondent therein is not easy to see. In the absence of the order itself before me and the circumstances under which Kania J. came to pass that order if he ever did so, I am not inclined to treat merely a statement of the contents of that order as contained in that report as any precedent for me which I should be invited to follow or which I would consider myself bound to follow. Even though the above two orders of Mirza J. and Kania J. be treated as precedents, I would, with great respect to the learned Judges, decline to follow the same, having particular regard to the fact that right from the very commencement of the exercise of this inherent or general jurisdiction by our Court the orders which have been asked for and have been made by the Court in these matters have been for the appointments of the petitioners, who were invariably the kartas or managers of the joint Hindu family, the guardians of the property of the minor coparceners of the joint family and not merely to authorise them to alienate the interests of the minor coparceners in the joint family properties.
12. I have, therefore, come to the conclusion that in those cases where the Court in the exercise of its inherent or general jurisdiction sanctions the alienation of the interest of a minor coparcener in the joint family property, the petitioner, the karta or manager of the joint family, should be appointed a guardian of the undivided share of the minor coparcener in the joint family property before the Court sanctions the transaction by way of sale or mortgage of the joint family property as for the benefit of the minor coparcener.
13. I accordingly order that the petitioners be appointed guardians of the undivided shares and interests of their respective minor children, being the respondents herein, in the property situate at Dammer Lane, now known as Harischandra Goregaonkar Road, Gamdevi, mentioned in Schedule 'A' to the petition and agreed to be sold to Dattatraya Ramchandra Naik, and sanction the sale of the property as being for the benefit of the minor respondents.
14. The costs of the petitioners fixed at Rs. 650 and those of the respondents fixed at Rs. 200 to come out of the sale proceeds.