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In Re: Prakash Navnitbhai - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Case NumberCivil Appln. No. 16 of 1985 in Misc. Petn. No. 4 of 1979
Judge
Reported inAIR1986Guj116; (1986)2GLR1041
ActsMajority Act, 1875 - Sections 3; Hindu Minority and Guardianship Act, 1956 - Sections 4 and 5
AppellantIn Re: Prakash Navnitbhai
Advocates: C.G. Mehta, Adv.
Cases ReferredSwaminathan v. Angayarkanni Ammal
Excerpt:
- - 4(a) of the act clearly defines as to who is a 'minor' while, s. 6. the contention of the petitioner cannot be accepted because the preamble of the act clearly shows that it is intended to be amended and codified certain parts of the law relating to minority and guardianship among hindus and it is only in respect of the points and matter specifically dealt with in it that the law relating to minority and guardianship among hindus is codified in this enactment, i......of the act defines 'minor, according to which, a person who has not completed the age of eighteen years is minor. the petitioner relies on the provisions of s. 5(b) of the act which gives overriding effect to the act and provides that any other law in force immediately before the commencement of the act shall cease to have effect in so far as it is inconsistent with any of the provisions in the act. in view of the aforesaid provision it is contended that the provisions of s. 3 of majority act is inconsistent- with the provisions, of the act and therefore the same cannot be taken into consideration. according to the counsel for the petitioner, s. 4(a) of the act clearly defines as to who is a 'minor' while, s. 3 of the majority act deals with the same subject and makes different.....
Judgment:
ORDER

1. Alas: The petitioner who has otherwise become major (of 18 years) is required to be told to wait till he attains majority which in the facts and circumstances of the case, he will attain when be completes 21 years of age.

2. In Misc. Petn. No. 4 of 1979 (a guardianship petition) decided on Oct. 15, 1979, it was prayed that the immoveable property belonging to the joint family in which the minors had interest be permitted to be sold. The court inquired into the matter and in that matter guardian ad litem was also appointed. After necessary investigation, the Court (Coram : B. J. Divan, C. J. as he then was) passed the following order on Oct. 15, 1979.

'In view of the material produced from the valuer's report, it is clear Rs. 155/- per square metre is a ' reasonable price in respect of the property which is being sold, under these circumstances, sale is sanctioned as being for

the benefit of the minor. Petitioners are put on condition of depositing the amounts mentioned in the penultimate paragraph of the report being the report dated October 4, 1979. These amounts to be deposited in the

usual manner of such deposits. Amounts to be invested with one of the Nationalised Banks.'

3. In this application it is contended on behalf of the petitioner, who was minor at - the time when aforesaid guardianship petition was decided, that an amount of Rs. 40,300/-. Has been deposited with the Additional Registrar of this High Court till the petitioner attains majority. It is contended that the petitioner has attained majority, i.e. he has completed 18 years of age on Feb. 21, 1985. The petitioner has also produced a certificate showing the date of birth. The petitioner prays that the amount of Rs. 40,300/- lying with the Addl. Registrar be released and be paid. to him.

4. In view of the provisions of S. 3 of the Majority Act, 1875, the petitioner cannot be said to have become major. He can be said to have attained the majority when he shall have completed the age of 21 years and not before. As per the provisions of S. 3. of the Majority Act, 1875, it is clear that notwithstanding anything contained in the Succession Act where the minors person or property was in the hands of the guardian at the age of 18, his minority would, extend up to 21 years of age.

5. On behalf of the petitioner it is contended that to the facts and circumstances of this case the provisions of the Hindu Minority and Guardianship Act, 1956 (No. 32 of 1956) (hereinafter referred to as 'the Act') will apply. S. 4(a) of the Act defines 'minor, according to which, a person who has not completed the age of eighteen years is minor. The petitioner relies on the provisions of S. 5(b) of the Act which gives overriding effect to the act and provides that any other law in force immediately before the commencement of the Act shall cease to have effect in so far as it is inconsistent with any of the provisions in the Act. In view of the aforesaid provision it is contended that the provisions of S. 3 of Majority Act is inconsistent- with the provisions, of the Act and therefore the same cannot be taken into consideration. According to the counsel for the petitioner, S. 4(a) of the Act clearly defines as to who is a 'minor' while, S. 3 of the Majority Act deals with the same subject and makes different provision than what is made in the Act and therefore, it is, inconsistent with the provisions of the Act.

Hence, according to him, the same cannot be given effect.

6. The contention of the petitioner cannot be accepted because the preamble of the Act clearly shows that it is intended to be amended and codified certain parts of the law relating to minority and guardianship among Hindus and it is only in respect of the points and matter specifically dealt with in it that the law relating to minority and guardianship among Hindus is codified in this enactment, i.e. the Hindu Minority and Guardianship Act, 1956. The enactment does not purport to give the whole law on the subject of guardianship. S. 2 of the Act states in explicit terms that the provisions of the Act are supplemental to and are to be read as additional to and not in derogation of those contained in the Guardians and Wards Act of 1890 which is the principal enactment on the subject. The Act is principally intended to declare as to who are the persons entitled to act as the natural guardians of a Hindu minor in respect of the person and property of the minor and to impose certain restrictions on the powers of such guardians. It is, therefore, both a codifying and a supplemental enactment and its provisions must be read in the context of the law laid down in the Guardians and Wards Act, 1.890.

7. Section 6 of the Act lists out the natural guardians of a minor while S. 8 defines the powers of those natural guardians. S. 9 deals with testamentary guardians and their powers. The Act does not make it incumbent for any of these persons to obtain a certificate of guardianship from court. The powers of natural and testamentary guardians cease on the, minor's- completion of the age of eighteen years. But if a guardian of the person or property is appointed or declared by a court or superintendence of his property is assumed by the Court of Wards, the minor shall be deemed to have attained majority on the completion of twenty one years, despite the, overriding effect of the Hindu Minority and Guardianship Act over other Acts. The reason is that the Hindu-Minority and Guardianship Act deals only with natural and test guardians and their powers cease on the appointment of a certified guardian. or the, assumption of superintendence by a Court of Wards. Therefore, the Hindu Minority and Guardianship Act virtually leaves the age of majority of a Hindu Minor unaffected. In this view of the matter, the provisions of S. 3 of the Majority Act which provides the age of 21 as the age of minority in cases where the court guardian has been appointed for the person or property of a minor cannot (sic) be said to override the rule of majority, i.e. 18 years fixed under the Hindu Minority and Guardianship Act, 19S6. The overriding effect of the latter Act comes in only in case of inconsistency between its provisions and any other law in force immediately before its, commencement. Similar view has been taken by the Madras High Court in the case of Swaminathan v. Angayarkanni Ammal, reported in AIR 1964 Mad 11.

8. In above view of the matter, the contention that the provisions of the Act would be applicable and that the petitioner has attained majority on completion of 18 years of age and therefore the amount deposited be released cannot be accepted. There is no dispute with regard to the fact that the petitioner has not attained the age of 21 years. It is also not disputed that the Court has assumed the superintendence over the property of the petitioner before he attained the age of 18 years. Therefore, he cannot be said to be major, till he attains the age of 21 years. Hence, the application is rejected at this stage.

9. Petition dismissed.


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