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Rudra Prokash Misser Vs. Bhola Nath Mukherjee, Manager of the Phulwaria Ward Estate - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal612
AppellantRudra Prokash Misser
RespondentBhola Nath Mukherjee, Manager of the Phulwaria Ward Estate
Excerpt:
appeal - second appeal--order allowing purchaser of decree to execute it--civil procedure code, 1882, sections 2, 232, 244--transfer of property act (iv of 1882), section 131--decree--debt. - .....first clause of section 3 of the indian majority act (ix of 1875) ceases to have effect if the; guardian appointed dies or resigns his trust after the minor has attained the age of eighteen years. section 3 of act ix of 1875[1] provides that 'every minor of whose person or property a guardian has been or shall be appointed by any court of justice* * * *shall be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.' we are unable to adopt the view suggested to us of the law.3. it appears to us that in order to get this construction it would be necessary to add words to the section. the learned counsel for the appellant accepts the proposition that it would be necessary to add to the section the words, 'provided the guardian.....
Judgment:

Tottenham and Norris, JJ.

1. This is an appeal against an order of the District Judge of Bhaugulpore refusing to appoint the appellant guardian of his minor brother under the provisions of Act XL of 1858, the ground of the refusal being that the petitioner is himself a minor, not having reached the age of twenty-one.

2. The learned Counsel for the appellant contends that, although the petitioner has not yet reached the age of twenty-one, his minority has ceased, because the guardian once appointed by the Court, namely, the Collector, has resigned his trust; and ha asks us to hold that the first Clause of Section 3 of the Indian Majority Act (IX of 1875) ceases to have effect if the; guardian appointed dies or resigns his trust after the minor has attained the age of eighteen years. Section 3 of Act IX of 1875[1] provides that 'every minor of whose person or property a guardian has been or shall be appointed by any Court of Justice* * * *shall be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before.' We are unable to adopt the view suggested to us of the law.

3. It appears to us that in order to get this construction it would be necessary to add words to the section. The learned Counsel for the appellant accepts the proposition that it would be necessary to add to the section the words, 'provided the guardian appointed does not die or cease to hold office till the minor attains the age of twenty-one.' It seems to us that a guardian of the petitioner under Act XL of 1858 having been once appointed, he must by Act IX of 1875 continue to be a minor until he reaches the age of twenty-one, whether the original guardian continues to be his guardian or not. The order of the District Judge therefore disallowing the application appears to us to be correct in law.

4. It has also been objected that the District Judge has appointed another person provisionally to be guardian and manager for a period of two months. It is contended that there is no provision in Act IX of 1875 for such appointment. But inasmuch as the petitioner before us is a minor, no application from him can be heard unless he is properly represented.

5. The appeal is dismissed with costs to be recovered from the estate.

[1]

[Section 3: Subject as aforesaid every minor of whose person or property a guardian has

been or shall be appointed by any Court of Justice, and every

Age of majority of per- minor under the jurisdiction of any Court of Wards, shall, not-

sons domiciled in British withstanding anything contained in the Indian Succession Act

India. (No. X of 1865) or in any other enactment, be deemed to have

attained his majority when he shall have completed his age of

twenty-one years and not before.

Subject as aforesaid, every other person domiciled in British India shall be deemed to

have attained his majority when he shall have completed his age of eighteen years and not

before.]


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