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V.N. Swaminathan Vs. Angayarkanni Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberC.M.P. No. 407 of 1963 in C.M.A. No. 14 of 1956
Judge
Reported inAIR1964Mad11
ActsHindu Minority and Guardianship Act, 1956 - Sections 4 and 5; Majority Act, 1875 - Sections 3; Guardians and Wards Act, 1890 - Sections 41(1)
AppellantV.N. Swaminathan
RespondentAngayarkanni Ammal and ors.
Appellant AdvocateAdv. General and ;R.G. Rajan, Adv.
Respondent AdvocateM.M. Ismail and ;P. Ramaswami, Advs.
DispositionPetition dismissed
Excerpt:
family - age of majority - sections 4 and 5 of hindu minority and guardianship act, 1956, section 3 of majority act, 1875 and section 41 (1) of guardians and wards act, 1890 - dispute regarding age of majority for removal of guardian appointed by court - minor claimed that age of majority was 18 years by virtue of act of 1956 - act of 1956 does not have any provision regarding appointment of guardian by court - in present context age of majority to be governed by act of 1875 - age of majority be 21 years. - .....act, 1875, regarding minority is superseded by the specific provision in section 5(b) of the hindu minority and guardianship act, 1956, and that notwithstanding the fact that the court guardians of his person were appointed, he has on his completion of 18 years of age become a major. if the petitioner has become a major, he is certainly entitled to the relief he asks for under section 41(1)(c) of the guardians and wards act.2. the question, therefore, is whether the petitioner has become a major. in order to decide this question it will be necessary to notice the relevant statutory provisions. the indian majority act, 1875 by section 3 provides that every person domiciled in part a states shall be deemed to have attained his majority when he shall have completed his age of 21 years.....
Judgment:
ORDER

Veeraswami, J.

1. In my opinion, this petition cannot be ordered. The petitioner is the only son of V. Nadimuthu Pillai, who died on 26th October 1954. The petitioner's date of birth is stated to be 25th June 1944 and he is said to have completed 18 years of age as on 25th June 1962. On O. P. Nos. 323 and 35 of 1955, on the file of the Court of the Subordinate Judge, Tanjore, the first respondent was appointed as his personal guardian. But on appeal this Court in C. M. A. No. 14 etc., of 1956, by a consent order, appointed the first two respondents as joint personal guardians of the petitioner It appears further from the affidavit filed in support of this petition that the petitioner has been residing in the family house at Tanjore with his grandmother and is now studying in the B. A. class in the Rajah Serfoji College, Tanjore. He says that he took charge of his estate on 16th September 1962 from the third respondent, who was appointed as executor by his father in his will dated 9rh September 1952, which was duly probated in O. P. No. 31 of 1957 on the file of this Court.

Since he took over the estate, the petitioner, according to him, has appointed the third respondent as his general power of attorney agent to manage his properties within the State of Madras. He has now applied to this Court for discharging the first and second respondents from joint personal guardianship on the ground that the provision in the Indian Majority Act, 1875, regarding minority is superseded by the specific provision in Section 5(b) of the Hindu Minority and Guardianship Act, 1956, and that notwithstanding the fact that the Court guardians of his person were appointed, he has on his completion of 18 years of age become a major. If the petitioner has become a major, he is certainly entitled to the relief he asks for Under Section 41(1)(c) of the Guardians and Wards Act.

2. The question, therefore, is whether the petitioner has become a major. In order to decide this question it will be necessary to notice the relevant statutory provisions. The Indian Majority Act, 1875 by Section 3 provides that every person domiciled in part A States shall be deemed to have attained his majority when he shall have completed his age of 21 years and not before. But this is subject to the main part of the section which is to the effect that a minor, of whose person a guardian has been appointed by a Court shall, notwithstanding anything contained in the Indian Succession Act, 1865, or in any other enactment, be deemed to have attained his majority when he shall have completed his age of 21 years and not before. Under this provision, therefore, the petitioner can claim to be a major only when he completes his age of 21 years. It has also to be noted that the first part of Section 3 will operate notwithstanding anything contained in the Indian Succession Act on in any other enactment.

Section 4 of the Guardians and Wards Act defines a minor to mean a person who under the provisions of the Indian Majority Act, 1875 is to be deemed not to have attained his majority. This section does not, therefore, take the matter further than the Indian Majority Act itself. Section 6 of the Guardians and Wards Act saves the operation of the personal law of a Hindu minor and that means the Guardian and Wards Act does not affect the power under his personal law to appoint a guardian of his person or property, as for instance by a will or other means. The Court's power to appoint a guardian for the person of a minor is contained in Section 7 of this Act. Section 41(l)(c) provides that the powers of a guardian of a minor shall cease by the ward ceasing to be a minor. The Hindu Minority and Guardianship Act 1956, came into force in August 1956 which has application to a Hindu. This Act also contains vide Section 4(1) a definition of a minor, namely, that he is a person who has not completed the age of 18 years. Then comes Section 5, which provides for the overriding effect of the Act. The section reads :

'Save as otherwise expressly provided in this Act (a) any text, rule or interpretation of Hindu law, or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have affect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

The submission on behalf of the petitioner is that the effect of Section 5(b) is to override the first part of Section 3 of the Indian Majority Act, with the result that even in a case where a Court guardian has been appointed for the person of a minor, he will become a major the moment he completes the 18 years of age. It seems to me that this interpretation of the effect of Section 5 is not correct. Section 2 of the Hindu Minority and Guardianship Act is clear that its provisions are in addition to and not in derogation of the Guardians and Wards Act unless there is an express provision in the Act to the contrary In the present context, the only express provision is Section 4(a) which defines a minor as a person who has not completed the age of 18 years. If this definition is inconsistent with the first part of Section 3 of the Indian Majority Act, Section 5(b) of the Hindu Minority and Guardianship Act will have an overriding effect, namely, that the definition of a minor in the Hindu Minority and Guardianship Act will prevail over the definition of a minor contained in Section 3 of the Indian Majority Act.

But as I read the sections in the two enactments, I am unable to regard Section 4(a) of the Hindu Minority and Guardianship Act as in any way inconsistent with Section 3 of the Indian Majority Act A perusal of the sections of the Hindu Minority and Guardianship Act shows that its purpose is merely to replace the personal law governing a Hindu in respect of the age of minority. The Hindu Minority and Guardianship Act itself does not contain provision for appointment of a Court guardian. On the other hand, this Act itself, as I already mentioned, provides that its provisions shall be in addition to and not in derogation of the Guardians and Wards Act, 1890. For purpose of appointment of a Court guardian, one has, therefore, to look to the provisions of the Guardians and Wards Act, 1890, and the definition of a minor in the Indian Majority Act. Further Section 4(a) of the Hindu Minority and Guardianship Act, also indicates that the definition of a minor made therein is only for purposes of that Act.

The purpose of the Act is not to supersede the provisions of the Guardians and Wards Act 1890, but to supplement it. It follows, therefore, that to the extent the first part of Section 3 of the Indian Majority Act provides that where a Court guardian has been appointed for the person of a minor he shall be deemed to be a minor until he shall have completed the age of 21 years, it is not inconsistent with the definition of a minor Under Section 4(a) of the Hindu Minority and Guardianship Act. If the Hindu Minority and Guardianship Act itself had provided for a complete Code including provisions for appointment of guardians, it would have been a different matter. The definition in Section 4(a) will therefore govern only the application of the other provisions of the Act, which do not include appointment of a guardian of a person of a minor.

3. The learned Advocate General who appeared for the petitioner argued that since the Hindu Minority and Guardianship Act is intended to supersede the personal law of a Hindu minor and Section 5(b) gives an overriding effect to the provisions of the Act, it must be taken that the first part of Section 3 of the Indian Majority Act can no longer apply to a Hindu minor. I am unable to accept this contention. The learned Advocate General is right that the purpose of the Act is to replace the Hindu law of Minority. But the effect of Sections 4(a) and 5(b) of the Hindu Minority and Guardianship Act is not to override the first part of Section 3 of the Indian Majority Act. The overriding effect will come in only in case of inconsistency between the provisions of the Hindu Minority and Guardianship Act and any other law in force immediately before that came into force. But as in my view there is no such inconsistency between Section 4(a) of the Hindu Minority and Guardianship Act and the first part of Section 3 of the Indian Majority Act, the latter provision continues to govern a Hindu minor, for whose person a Court guardian has been appointed.

4. On that view, the petition is dismissed.


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