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Arulananda Muthu and anr. Vs. Ponnuswami Alias Thambaya Swami Maniyagar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1922Mad1; 66Ind.Cas.265; (1922)42MLJ129
AppellantArulananda Muthu and anr.
RespondentPonnuswami Alias Thambaya Swami Maniyagar and ors.
Cases ReferredChetii v. Chetti
Excerpt:
.....his age of twenty one years and not before. if this stood alone, the conclusion of the subordinate judge would be perfectly correct and we should have to support it. the word 'capacity 'in the act is wider in meaning and includes legal competency as well as other ability. , (1) that the word 'enactment' is section 3 of the indian majority act does not include a regulation of the madras code (2) that a general law such as the majority act does not affect a special law like regulation v of 1804 and (3) that the effect of section 25 of the regulation is to make the adoption voidable only at the instance of the court of wards and not to make it void, need not therefore be considered......1897 when the general clauses act defined 'enactment' and as to the application of the court of wards regulation being only as governing the relations between the court of wards and its wards. bat it is not necessary to deal with these points, as on the first point the appellant is entitled to succeed.6. the result must be that the suit, which was dismissed must be remanded for decision upon the other points arising in the case. we decide nothing on the question of the plaintiff's age in this issue, or as to other issues which have not been argued before us. these questions will be determined by the lower court.7. costs of the appellant and respondents 1 and 7 will abide the result and be provided for in the final decree. the appellant is entitled to a refund of court-fees paid by him.....
Judgment:

Spencer, J.

1. The plaintiff brought this suit for a declaration of his title to succeed to the properties of Ponnusami Maniyagar by virtue of his having been adopted by that individual and for recovering his share in the estate. The Subordinate Judge dismissed the suit holding that, as Ponnuswami Maniyagar was a ward under the Court of Wards at the time of the adoption, and as the Court of Wards had not sanctioned the alleged adoption, even if true, would be invalid for want of the previous consent of the Court of Wards in writing as required by Section 25 of Regulation V of l804.

2. Section 25 of Regulation V of 1804 declares : 'It shall not be competent for disqualified landholders to adopt children without the consent of the Court of Wards previously had in writing' and Section 4 of that Regulation declares 'where minors may succeed to inheritable property, they shall not, in any case, be competent to take charge of or to administer their own affairs during the period of the minority; and for the better understanding thereof, the duration of minority shall, without exception, continue until the completion of the eighteenth year of age'. In 1875, the Indian Majority Act was passed, and it provided under Section 3 that 'every minor of whose property the superintendence has been or shall be assumed by any Court of Wards shall be deemed to have attained his majority when he shall have completed his age of twenty one years and not before.' Then the section goes on to provide that every other person domiciled in British India shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before. If this stood alone, the conclusion of the Subordinate Judge would be perfectly correct and we should have to support it. But Section 2(a) of this Act states 'Nothing herein contained shall affect the capacity of any person to act in the following matters (namely), marriage, dower, divorce and adoption.'

3. Now we see that 18 is the age of majority for Wards of Court under the Regulation before Act IX of 1875 was passed and it is the age of majority for other persons under Act IX of 1875; but when the Indian Majority Act was passed at a time while Regulation V of 1804 was still in force, its effect was to raise the age of majority from 18 to 21 for minors whose estates are under the administration of the Court of Wards for all purposes except for those matters referred to in Section 2. The result is that, as regards questions of marriage, adoption etc, the capacity of minors is left untouched by the Indian Majority Act, and it is as if the Act had never been passed. In such matters the law stands exactly as it stood before that piece of legislation was put on the Statute book. It is argued that the restriction upon adoption contained in Section 25 of the Regulation was introduced not by reason of the age of the minor, but by reason of the fact that he is a disqualified owner; but when the Act of Majority does not extend the disqualification of persons under the age of 21 to matters of marriage, adoption etc., the effect is that an adoption made by a person over 18 but under 21 without the consent of the Court of Wards is not invalid by reason of the Regulation. The word 'competent' in the Regulation implies legal competency. The word ' capacity ' in the Act is wider in meaning and includes legal competency as well as other ability.

4. Mr. Sitaram Rao wished us to take the view that the saving clause appearing as Section 2 of Act IX of 1875 governs only the general provision in Section 3 as to 18 years being the age of majority for ordinary persons, but not the special provision as to minors whose property is under the superintendence of the Court of Wards. I find it impossible to make this distinction when the words in Section 2 are 'nothing herein contained shall affect' : ' Herein contained' must mean ' contained in any part of this Act'. There are no apt words which may serve to restrict the application of Section 2 to one part of the Act while applying it to other portions.

5. Some additional points were raised before us by the learned vakil for the appellant as to the effect of the Majority Act being only applicable to Regulations passed after 1897 when the General Clauses Act defined 'enactment' and as to the application of the Court of Wards Regulation being only as governing the relations between the Court of Wards and its wards. Bat it is not necessary to deal with these points, as on the first point the appellant is entitled to succeed.

6. The result must be that the suit, which was dismissed must be remanded for decision upon the other points arising in the case. We decide nothing on the question of the plaintiff's age in this issue, or as to other issues which have not been argued before us. These questions will be determined By the lower Court.

7. Costs of the appellant and respondents 1 and 7 will abide the result and be provided for in the final decree. The appellant is entitled to a refund of court-fees paid by him on his appeal.

Ramesam, J.

8. I agree.

9. Assuming that the words 'capacity' should be construed in the Majority Actoin its general sense, i e, inherent or intrinsic capacity, (Cf. Ogden v. 0gden (1908) Prob. 46, Chetii v. Chetti (1909) Prob. 67) and that restraints on capacity may not be properly described as want of capacity, still the extension of the restraint on the capacity to adopt in S 25 of the Court of Wards Regulation V of 1804 which is terminable at the age of 18, to the age of 21 by the use of the Majority Act in reading Section 4 of the Court of Wards Regulation and applying it first to the word 'minor' and then to ''disqualified land-holder' amounts to affecting the capacity of the minor. Section 2 of the Act therefore, applies.

10. Other points argued by the learned Vakil for the appellant, viz., (1) that the word ''Enactment' is Section 3 of the Indian Majority Act does not include a Regulation of the Madras Code (2) that a general law such as the Majority Act does not affect a special law like Regulation V of 1804 and (3) that the effect of Section 25 of the Regulation is to make the adoption voidable only at the instance of the Court of Wards and not to make it void, need not therefore be considered.


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