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 Clause 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 Clause 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 Clause 12 aforesaid does not confer any Jurisdiction upon the Court but 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 power's which the High Court of Judicature at Fort William in Bengal exercised in the Bengal Division of the Presidency of the Fort 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 Clause 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 Clause 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 Clause 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. XL of 1858 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:--
3. Clause 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 (Clause 9), for Second Appeals (Clause 10), for First Appeals (Clause 11) against judgments of the courts of original jurisdiction and lastly the power over infants, idiots and lunatics (Clause 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. Banwarl Lal Roy AIR 1947 P C 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 Clause 12 be treated as special jurisdiction conferred upon this Court.
4. 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 but 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 Clause 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.
5. That the power over infants' estates is even in Calcutta High Court, not confined to the area where the Calcutta High Court exercises its Ordinary Original Civil Jurisdiction is made clear by their Lordships of the Privy Council in AIR 1947 P C 90 by holding :
'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. Apart from the Ordinary Original Civil and Ordinary Original Criminal jurisdiction the jurisdiction of the High Court extends beyond the town of Calcutta.'
6. This is sufficient to repel the first and the second contentions of the learned counsel. When the Calcutta High Court itself has jurisdiction over infants outside Calcutta where it has no Ordinary Original Civil Jurisdiction there can be no impediment to the exercise of similar powers by this Court simply because no Ordinary Original Civil Jurisdiction has been conferred on this Court.
7. Learned counsel then contended that the Calcutta High Court may possess that jurisdiction but it did not in fact exercise it outside Calcutta. That takes us to the third contention mentioned above. We are unable to see much difference in the power which vests and in the power which is exercised. When powers are vested in a Court whether actually an occasion arises for the exercise of that power or not, as soon as the Court is established and is ready to exercise that power, it must he deemed to be exercising that power. No case has been brought to our notice in which the Calcutta High Court has refused to exercise power over infants outside the town of Calcutta although the power has been conferred upon it throughout the Bengal Division of that Presidency. In the matter of Srish Chunder Singh, I L R 21 Cal 206 Mr. Justice Sale observed that he was not aware of any instance in which the Court had exercised that jurisdiction in the case of infants residing outside the Ordinary Original Civil Jurisdiction of the Court who is other than an European British Subject. This observation clearly indicates, that the Court did exercise that power, outside Calcutta at least over European British .subjects and probably no case arose in respect of other subjects. What has been conferred upon this Court is the power and not the limitation that it shall be lexercised over such persons alone over which it is being exercised by the Calcutta High Court. It has been expressly provided in Clause 12 of the Letters Patent of this Court that this power is to be exercised with respect to (all) 'persons and estates of infants, idiots, and lunatics within the north-western Provinces'. No restriction has been placed upon the exercise of this power by this Court either with regard to persons of a particular class or with regard to the area within the north-western Provinces. Only the nature of the power has to be the same as exercised by the Calcutta High Court.
8. The only contention now to be dealt with is based upon the phrase 'subject to the provisions of any laws or regulations now in force.' In the year 1866 when the Letters Patent was granted to this Court, Act No. 40 of 1858 was in force relating to estates of infants. The preamble to this Act states
'Whereas it is expedient to make better provisions for the care of person and property of minors not brought under the Superintendence of the Court of Wards, it is enacted as follows'.
The Act was, therefore, for the purpose of making better provisions for the care of minors. It was not an Act to supersede the powers of the Supreme Court which was the predecessor of the High Court. Obviously the Supreme Court sitting at one place could not take care of the minors spread over the whole o the Province and it was definitely more convenient to authorise the Courts of local jurisdiction to deal with these matters within their own limited areas. Section 29 also stated that nothing in the Act was to be held to affect the powers of the Supreme Court over persons or property of any minor subject to its jurisdiction. Thus the jurisdiction of the Supreme Court which then existed was preserved and it is that jurisdiction which has been conferred upon the High Court. All that is meant by the phrase 'subject to the provisions of any laws or regulations now in force' is that the powers of the High Court will not be so exercised as to conflict with the provisions of any law in force at the time. If the High Court in the exercise of its special powers passes any order in respect of the estate of an infant, it does not contravene the provisions of the Act. But the High Court will not pass orders under this special power in respect of an infant or his estate in respect of which a district Court has already passed orders. Concurrent' jurisdiction in two Courts is not unknown to law. We do not, therefore, see any force in the contention that on account of existence of Act No. 40 of 1858, the power conferred by Clause 12 of the Letters Patent became a dead letter.
9. Lastly it has to be remembered that the framers of the Letters Patent which has been granted to this Court must have fully well known that this Court had no Ordinary Original Civil Jurisdiction and if it was intended that these powers over infants could only be exercised where such jurisdiction existed, they would not have conferred this power on this Court knowing that it could not possibly be exercised. We are not prepared to accept such a construction and we are of the opinion that the power can be exercised irrespective of the existence of Ordinary Original Civil Jurisdiction in the High Court and that Clause 12 is not a dead letter and is not redundant. The fact, however, remains that the Guardians and Wards Act now provides an elaborate machinery for all matters relating to guardianship and is applicable to every part of the territory over which this Court has jurisdiction. Thus the normal course for every litigant who wants relief in that matter should be to approach the principal civil Court of Original Civil Jurisdiction within the area, in which the infant resides or the estate of the infant exists and this Court would be loath to exercise the-special powers vested in it under Clause 12 of the Letters Patent, except in very special circumstances when the Court finds that substantial injustice is likely to occur if the special power is not exercised. But we are not concerned in this reference with the propriety of the orders; we have only to answer whether this. Court can exercise that power or not. The fact that during the period of almost 100 years for which this Court has field the power and only three or four cases have arisen on the subject, shows the reluctance of this Court to exercise this special power, even though in the matter of Govind Prasad : AIR1928All709 and Mt. Haidri Begum v. Jawwad Ali Shah : AIR1934All722 the existence of this power was not even challenged and was taken for granted. The only case in which this power was challenged was in Jaundha Kuar v. Courts of Wards, I L R 4 All 159. This was a case relating to lunatics and this Court after an enquiry from the Calcutta High Court found that it was not expedient to exercise that power and refused to do so.
10. After a careful consideration of the matter our answer to the question is in the affirmative that this Court has jurisdiction in the exercise of powers under Clause 12 of the Letters Patent (Allahabad) to appoint guardian of a minor and pass orders with regard to the custody of such minor. Let the papers be returned to the learned single Judge with our answer.