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Dinanath and anr. Vs. Chandrabhagabai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal No. 117 of 1957
Judge
Reported inAIR1958Kant92; AIR1958Mys92; ILR1958KAR171; (1958)36MysLJ182
ActsGuardians and Wards Act, 1890 - Sections 4(6), 39, 41, 41(2) and 47; Hindu Law
AppellantDinanath and anr.
RespondentChandrabhagabai and anr.
Appellant AdvocateA.V. Albal, Adv.
Respondent AdvocateV.S. Gunjal, Adv.
Excerpt:
.....who it is admitted, is an educated person holding an employment of trust and responsibility in a bank at hubli can well take care of himself and his family properties......guardian of the property ceased to be operative, and tbe court was bound to hand over the joint family property to the coparcener who had become an adult, although the other coparcener is a minor.' 6. it appears to me that the above cases lay down the correct law. 7. the first appellant, who it is admitted, is an educated person holding an employment of trust and responsibility in a bank at hubli can well take care of himself and his family properties. further, his guardianship, at any rate of appellant 1's properties ceased under the provisions of sub-section (2) (c) of section 41 of the act, the moment the first appellant attained the age of majority and completed the age of 21 years. 8. the order of the court below is therefore quite unsupportable and must be and is set aside; but.....
Judgment:

Somnath Iyer, J.

1. On an application made under the provisions of the Guardians and Wards Act, the Deputy Nazir of the Court of the District Judge, Belgaum, was appointed guardian of the properties of the four minor sons of one Shripad Deshpande, who left behind him those four minor sons, his two widows and also a daughter by his first wife Laxmibai and another daughter Gulab by his second wife Chandrabhagabai.

Pursuant to a notification issued under the provisions of Sub-section (6) of Section 4 of the Guardians and Wards Act by the Government o Bombay in the year 1954, the personal Assistant to the Collector of Belgaum was appointed guardian of the properties of those four minor sons in place of the Deputy Nazir of the District Judge's Court, Belgaum, who had been originally appointed as such guardian.

2. The eldest of those four brothers completed the age of 21 years on April 25, 1957, whereupon he made an application (Ex. 44) in the Court below that possession of the properties in respect of which the said guardian had been appointed should be restored to him. In that application he undertook to abide by such terms as might be imposed by the Court in regard to the payment of adequate maintenance to his step sister Gulab, to his step mother Chandrabhagabai and to his mother Laxmibai and his two sisters who were still unmarried.

3. The Court below, although it came to the conclusion that on account of appellant 1 Dinanath Shripadrao Deshpande having completed the age of 21 years and having therefore ceased to be a ward, the guardianship in respect of the properties belonging to himself and his three brothers had terminated, nevertheless declined to grant the application made by the first appellant on the ground that he was a person who was employed in a place other than that in which the properties of the family were situate and also on the ground that the first appellant should be allowed some time to attain sufficient maturity although he had attained majority and directed that the properties should continue to be in the possession of the guardian. Against that order, the appellant Dinanath Shripad Deshpande, the eldest son and his mother Laxmibai have both appealed.

4. On behalf of the appellants it is argued by Mr. Albal that the order of the Court below is opposed to the provisions of Sections 39 and 47 of the Guardians and Wards Act. He has urged before us that under the provisions of Clause (J) of Section 39 of the Act, the Court ought to have removed the Personal Assistant to the Collector of Belgaum from the Guardianship of the properties of the minors by reason of such guardianship having ceased under the law to which the, minors were subject.

His argument was that the four minors, when a guardian was appointed for their property, being governed by the Hindu Law, soon after any one of them attained majority as indeed appellant 1 did in this case, the guardianship of respondent 2 who is the Personal Assistant to the Collector, Belgaum, at once terminated notwithstanding the facts that three of his brothers continued to be minors.

5. In support of his contention, he has drawn our attention to two decisions of the High Court of Bombay in Ramchandra v. Krishnarao, ILR 32 Bom 259 (A), and in Bindajee v. Mathurabai, ILR 30 Bom 152 (B). In the latter case ILR 30 Bom 152 (B), it was observed as follows :

'The reason of the rule that when the joint family originally comprises an adult, a guardian of the property cannot be appointed, (in our opinion) involves the conclusion that as soon as there is an adult coparcener any guardianship of the property previously constituted either ceases or is liable to cease, for then there is no longer any property in respect of which there can be a guardian.'

Justice Chandavarkar in ILR 32 Bom 259 (A), referring to that observations said that he accepted it as laying down the correct law in such cases. Justice Chandavarkar also proceeded to observe as follows :

'Where a joint Hindu family consists of coparceners who are all minors, the coparceners forming one group the Court has jurisdiction to appoint a guardian of the property for that group as a whole. But when, subsequently, one of that group arrives at the age of majority the ruling of the Full Bench in Virupakshappa v. Nilgangava, ILR 19 Bom 309 (C), must apply and the guardianship of the person so appointed by the Court must cease.

The District Judge is right in the present case in holding that as soon as the respondent arrived at the age of majority, the order appointing the Collector guardian of the property ceased to be operative, and tbe Court was bound to hand over the joint family property to the coparcener who had become an adult, although the other coparcener is a minor.'

6. It appears to me that the above cases lay down the correct law.

7. The first appellant, who it is admitted, is an educated person holding an employment of trust and responsibility in a Bank at Hubli can well take care of himself and his family properties. Further, his guardianship, at any rate of appellant 1's properties ceased under the provisions of Sub-section (2) (c) of Section 41 of the Act, the moment the first appellant attained the age of majority and completed the age of 21 years.

8. The order of the Court below is therefore quite unsupportable and must be and is set aside; but subject to this condition that before the Court below hands over the family properties to the possession of the first appellant to which he is entitled, it will enquire into the question as to how much maintenance should be paid to the step sister, the three brothers of the first appellant and to the appellants two sisters and mother Laxmibai. If will hold the necessary enquiry into those matters and fix up adequate and suitable sums of maintenance to be paid to those persons and direct that such sums of money shall be paid to them.

The Court below will also take adequate security from the first appellant in regard to the amounts due to the family under the Government securities whose face value is stated to be about Rs. 37,000/-. It will also impose a condition on the first appellant that he will not alienate without the sanction of the Court any of the family properties handed over to his possession until his three brothers complete the age of 21 years.

9. This appeal is allowed to the extent indicated above. Since the respondents did not contest the application of the first appellant in the Court below, there will be no order as to costs.

Malimath, J.

10. I agree.

11. Appeal allowed.


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