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Dorasami Tewar Vs. Sri Muthu Vijaya Regunadha Dorasami Tevar Avergal Alias Udayana Tevar and S. Kristnasami Aiyar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1896)6MLJ557
AppellantDorasami Tewar
RespondentSri Muthu Vijaya Regunadha Dorasami Tevar Avergal Alias Udayana Tevar and S. Kristnasami Aiyar
Cases ReferredMinakshi v. Subm
Excerpt:
.....act (act ix of 1861) is certainly ambiguous and a strong inference in favor of the view that the term guardian means guardian of the person only is said to be derivable from other enactments (madras regulation v of 1804, sections 10 and 20 and xxxv of 1858, sections 13 and 14). while admitting that this argument requires consideration i am not persuaded' that the wider and more popular construction of the term guardian should not be maintained. 4. there is certainly nothing in the language of the act which ren-ders it absolutely necessary to prefer the more restricted construction and it may not unreasonably be argued that the power to make provision for the property of a minor is almost a necessary consequence of the power conferred on the court to make provision for the well being of..........act (act ix of 1861) is certainly ambiguous and a strong inference in favor of the view that the term guardian means guardian of the person only is said to be derivable from other enactments (madras regulation v of 1804, sections 10 and 20 and xxxv of 1858, sections 13 and 14). while admitting that this argument requires consideration i am not persuaded' that the wider and more popular construction of the term guardian should not be maintained.4. there is certainly nothing in the language of the act which ren-ders it absolutely necessary to prefer the more restricted construction and it may not unreasonably be argued that the power to make provision for the property of a minor is almost a necessary consequence of the power conferred on the court to make provision for the well being of.....
Judgment:

Weir, J.

1. This is an appeal against the order of the District Court of Madura appointing one S. Kristnasami Aiyar to be sole guar-dian of the estate of certain minors and joint custodian along with the maternal uncle (appellant) of the persons of the minors.

2. The order purports to be made under Act IX of 1861 and the principal ground of objection urged before me is that the order in. so far as it appoints a guardian to the estate of the minor is ultra vires, inasmuch as Act IX of 1861 only empowers the court to appoint guardians to the persons of minors. This question has been argued at some length and I have taken time to consider the [539] arguments with the result that I am not satisfied that the District Judge's order should be disturbed.

3. The Act (Act IX of 1861) is certainly ambiguous and a strong inference in favor of the view that the term guardian means guardian of the person only is said to be derivable from other enactments (Madras Regulation V of 1804, Sections 10 and 20 and XXXV of 1858, Sections 13 and 14). While admitting that this argument requires consideration I am not persuaded' that the wider and more popular construction of the term guardian should not be maintained.

4. There is certainly nothing in the language of the Act which ren-ders it absolutely necessary to prefer the more restricted construction and it may not unreasonably be argued that the power to make provision for the property of a minor is almost a necessary consequence of the power conferred on the court to make provision for the well being of the minor in the other important respect of the care and keeping of his person.

5. The view that the term guardian is open to the wider construction which I think should be maintained is enforced by the fact that the legislature has in a recent enactment? defined the term as meaning ' a person having the care of the person of a minor or of his property or of both his person and property ' (Act VIII of 1890, S4). I am of opinion therefore that on a construction of the language of Act IX of 1861, the order of the District Judge was not ultra vires.

6. But if it were otherwise and if the narrower construction of the scope of the Act should be held to be the more correct, I am of opinion that the order made in the present case can be supported. The case is not one in which it can be maintained that there was any want of inherent jurisdiction in the court. The District Court, it is not disputed, had power to make the order it did, otherwise than under Act IX of 1861, viz., under Madras Regulations V of 1804 and X of 1831., This being so and the parties on both sides having after the cases proceeded to trial consented to the jurisdiction to appoint a guardian to the estate, the principle stated by the Judicial Committee of the Privy Council in Ledgard v. Bull (1886) L.R. 13 IndAp 131 I.L.R 9 A. 191 and reiterated in the case of Minakshi v. Subm manya. I.L.R. (1887) M. 26 applies.

7. On both the grounds stated therefore the appeal fails.

8. For the rest, objection is made to the remuneration of the guardian. This matter however follows the principal matter. The Regulation (Section 21, C1. 2) V of 1804 gives the District Court power to remunerate the guardian and although the Regulation speaks of a fixed salary, it can scarcely be argued that the court has not discretion to make the remuneration, i.e., the salary, dependent on the amount of collections. This method has the advantage of stimulating the zeal of the guardian.

9. For the reasons stated I confirm the District Judge's order and dismiss the appeal with costs.


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