1. British Courts in India appear from the outset to have considered the right of the father or other persons entitled to the custody of a minor to be a civil right and enforceable as such by suit in a Civil Court. That this was a well-known kind of suit appears from the Guardians and Wards Act IX of 1.861, which recited that it was expedient to amend the law for hearing suits relative to the custody and guardianship of minors, and provided that applications might be made by petition to the principal Civil Court of original jurisdiction in the District by which such application if preferred in the form of a regular suit would be cognizable.
2. It was first held in Calcutta that the right of Civil Suit was taken away by this Act, Mussamat Harasundari Baistabi v. Mussamat Jayadurga Baista Bi (1870) 4 Ben. L.E A 36 No reasons were given for the decision and the case was not followed in Brohmomoyee v. Kashi Chundersen I.L.R. (1881) C. 266. In Krishna v. Reade I.L.R. (1886) M. 31 this Court also held that : the right of suit was not taken away by the Act. of 1861, and this view is supported to some extent by the Provincial Small Cause Courts Act, 1887, which included in the schedule of suits excluded from the jurisdiction of the Small Cause Court-' Article 37. A suit for the restitution of conjugal rights, for the recovery of a wife, for the custody of a minor or for a divorce.' Act IX of 1861 and a large number of enactments relating to the guardianship of minor's property were repealed and re-enacted with modifications by the Guardians and Wards Act, 1890. It did not purport to be a codifying but a consolidating Act, which is a very different thing, and did not, as far as I can see, make any very material alterations in the provisions of Act IX of 1861 as to the guardianship of the person. It Was held however in Sham Lal v. Bindo I.L.R. (1804) A. 594 to have been a codifying Act and to have taken away the right of proceeding by regular suit in Civil Courts to recover the custody of minors. A different view was taken in Sharifa v. Munekhan I.L.R. (1901) B. 574 where however the point was not considered to be free from doubt. Then came the decision of the Privy Council in Besant v. Narayaniah . The plaintiff in that case had filed a suit in the District Court of Chingleput against the defendant, Mrs. Besant, who resided within that jurisdiction, for declarations that he was entitled to the guardianship and custody of his two minor sons, and that the defendant was not entitled and was in any case unfit to have the charge and guardianship of the minors, and for a direction to the defendant to hand them over to him or to such person as the Court might think fit. The minors, one of whom was nearly eighteen, were residing and being educated in England at the date of the suit.
3. The Privy Council held that the suit, which was a suit to recover the custody of the infants, did not lie in the District Court, and observed: 'The District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890'. The question for decision was whether a civil suit not under the Guardians and Wards Act would lie in the Civil Court. The Privy Council held that it would not, and assigned as the sole but sufficient reason for so holding the fact that the District Court had no jurisdiction in the case except under the Guardians and Wards Act. This I feel bound to construe as a ruling that the jurisdiction conferred by the Guardians and Wards Act was exclusive, and that the right of proceeding independently by civil suit no longer existed. The suit having been held incompetent, their Lordships proceeded to consider whether the proceedings could be supported if treated as proceedings under the Guardians and Wards Act, and held they could not because the minors were not resident in the District where the proceedings were instituted. If the jurisdiction of the District Court to entertain suits of this character not governed by the Guardians and Wards Act had been recognised as still existing to any extent, it would have been necessary to assign reasons for holding that it was inapplicable in the circumstances of the case. The judgment did not do so, but dismissed the suit simply on the ground that the Court had now no jurisdiction except under the Act. If this is the position of the District Court, the position of the District Munsif's Court must be the same. In Achratlal Jekisandas v. Chimanlal Parbhudas I.L.R. (1916) B. 600 it was no doubt held that the judgment of the Privy Council has not this effect, but no reasons were given for that decision, and I have been unable to find any which are satisfactory to my mind. I would answer the question in the negative.
4. I agree. The judgment of the Privy Council in Besant v. Narayaniah I.L.R. (1914) M. 807 appears to me to be open to no other construction.
Sadasiva Aiyar, J.
5. I agree and for same reasons.